Judge Lee W. Tsao, Case Number: 24NWCV00208, Date: 2024-03-22 Tentative Ruling

Judge: Lee W. Tsao, Case: 24NWCV00208, Date: 2024-03-22 Tentative Ruling

Case Number: 24NWCV00208 Hearing Date: April 4, 2024 Dept: C

GARFINKLE v. UNIVERSAL FITNESS CLUB NORWALK, LLC

CASE NO.: 24NWCV00208

HEARING: 04/04/024

Defendant UNIVERSAL FITNESS CLUB NORWALK, LLC’s Motion to Strike Portions of Plaintiff’s First Amended Complaint is DENIED. Defendant Universal Fitness Club Norwalk, LLC to Answer in 5 court days.

Opposing Party to Give notice.

This action for unlawful detainer was filed by Plaintiff DAVID GARFINKLE (“Plaintiff”) on January 18, 2024. On February 16, 2024, the operative First Amended Complaint (“FAC”) was filed.

Defendant UNIVERSAL FITNESS CLUB NORWALK, LLC (“Defendant”) moves to strike the following allegation from the FAC: “On or about 05/16/2016, the parties extended the original lease term from 10 years to 15 years” from Plaintiff’s Complaint. Defendant argues that this sentence should be stricken on the basis that the “written lease attached to Exhibit 1 to the First amended Complaint contained inconsistent facts as to the date the parties purportedly extended the lease term.” (Notice 2:4-7.)

In Opposition, Plaintiff argues that there is no inconsistency between ¶6d of the FAC and the attached Lease because the First Amendment to the Lease was executed on May 6, 2016 by the landlord and on May 9, 2016 by the tenant, which adequately falls within the alleged date of “on or about” May 16, 2016.

A motion to strike lies either when (1) there is “irrelevant, false or improper matter inserted in any pleading”; or (2) to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” (CCP §436.)

The motion to strike allegations contained in ¶6d of the FAC is DENIED. There is no inconsistency pled here that renders the FAC fatally uncertain. The FAC adequately alleges that the lease was extended “on or about May 16, 2016”—the FAC does not allege that the lease was extended specifically on the date of May 16, 2016. May 6 and May 9 of 2016 fall “on or around” May 16, 2016. The Court must accept the factual allegations set forth in the FAC as true at this stage in the litigation. (See Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967.)