Judge: Lee W. Tsao, Case: 22NWCV00662, Date: 2023-04-04 Tentative Ruling

Case Number: 22NWCV00662    Hearing Date: April 4, 2023    Dept: C

SINGERMAN v. BIELKE

CASE NO.:  22NWCV00662

HEARING:  4/4/23 @ 9:30 AM

 

#2

TENTATIVE RULING

 

Cross-Defendant Singerman’s motion to strike is DENIED.

 

Opposing Party to give NOTICE.

 

 

 

Cross-Defendant Singerman moves to strike ¶¶ 8-19 and 21-23 from the cross-complaint on the ground that they are irrelevant and improper.

 

The Complaint alleges a single cause of action for Breach of a Promissory note.  Plaintiff loaned Defendant $76,202.94, with the full balance payable on July 4, 2022.  Defendant failed to make payments to Plaintiff. 

 

Cross-Complainant Bielke filed a cross-complaint (“XC”) alleging that in 2019, he notified Singerman of a potential business opportunity.  (XC, ¶ 6.)  “At no time did Bielke ask, seek or insist that Singerman make him a partner” based primarily on “Bielke’s lack of funds.”  (Id., ¶ 7.)  Bielke agreed to invest his “sweat-equity, time and experience in setting up the new restaurant… in lieu of capital funding and in return would receive an interest.”  (Id., ¶ 11.)  The restaurant opened on January 2, 2020, and closed on December 31, 2021, due to the Covid-19 impacts.  (Id., ¶ 12.)  Bielke paid Singerman $200,000.00 and signed a promissory note for the amount Singerman claimed was owed under the threat of physical harm to himself and his family.  (Id., ¶ 19-20.)  At no time did a funding agreement or promissory note exist.  (Id., ¶ 13.)  Based thereon, the Cross-Complaint asserts causes of action for:

 

1.    Recover Money Paid under Duress and Menace

2.    Declaratory Relief

3.    Declaratory Relief

 

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper, strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.  (CCP § 436.)  The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice (e.g., the court's own files or records).  (CCP § 437.)

 

The court finds that ¶¶ 8-19 and 21-23 are potentially relevant to the 1st cause of action for Recovery of Money Paid under Duress, and at this pleading stage, the allegations may remain.  This court is not making any determination on the admissibility of any potentially prejudicial evidence at trial.  At this juncture, the allegations are relevant to the 1st cause of action.

 

Accordingly, the motion to strike is DENIED.