TENTATIVE RULING

Defendant Ocean Restaurant Group, LLC’s Motion to Strike Portions of Plaintiffs’ [sic] Complaint is DENIED.

Defendant Ocean Restaurant Group, LLC to give notice. 

REASONING

The court may, upon motion made pursuant to Code of Civil Procedure section 435, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike 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. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

First, it appears that Defendant Ocean Restaurant Group, LLC (“Defendant”)’s time to file a motion to strike has expired. As Defendant acknowledges, a party may file a motion to strike within the time allowed to respond to a pleading (Code Civ. Proc., § 435, subd. (b)(1)), and Defendant answered the complaint on May 6, 2024, before it filed the present motion to strike. While Defendant filed a different motion to strike on May 6, 2024, it opted to refile the motion here, such that the Court must consider the present motion as untimely. Nonetheless, the Court may strike material at any time within its discretion, and for that reason, the Court considers the merits of the motion.

Second, Code of Civil Procedure section section 435.5, subdivision (a)(3), requires party moving to strike to file a declaration describing the efforts to meet and confer before filing the motion. Defendant has included no such declaration here. However, in the interest of judicial efficiency, the Court opts to consider the merits of the motion at this juncture.

Defendant objects to Plaintiff seeking statutory damages of $600 in addition to actual damages in the prayer of the complaint. (Compl., p. 4, l. 13.) Code of Civil Procedure section 1174 provides that “[i]f the defendant is found guilty of forcible entry, or forcible or unlawful detainer, and malice is shown, the plaintiff may be awarded statutory damages of up to six hundred dollars ($600), in addition to actual damages, including rent found due.” Defendant argues that Plaintiff fails to allege facts supporting an award of statutory penalties. Here, Plaintiff alleges that Defendant continued in possession of the premises without permission or consent, and Plaintiff alleges that the continued possession is malicious, i.e., Defendant withheld possession with knowledge that the lease was terminated and against Plaintiff’s will. (Compl. ¶ 14.) Statutory damages arising out malice are proper where a party holds over knowing it has no claim to the property. (See Sasson v. Katash (1983) 146 Cal.App.3d 119, 127.) Insofar as Defendant takes issue with the nature of nonpayment of rent, it is for the trier of fact to determine whether the holdover was malicious based on the facts of the case. Accordingly, Defendant Ocean Restaurant Group, LLC’s Motion to Strike Portions of Plaintiffs’ [sic] Complaint is DENIED.