Judge: Lynette Gridiron Winston, Case: 22PSCV00960, Date: 2023-09-26 Tentative Ruling

Case Number: 22PSCV00960    Hearing Date: September 26, 2023    Dept: 6

Deafriders Trucking LLC v. Valley Power System, Inc.

Plaintiff’s Motion to Strike the Settlement Agreement

TENTATIVE RULING
The Court DENIES the motion to strike the settlement agreement.

Plaintiff is ordered to give notice and provide proof of service of same within five calendar days of the Court’s order.

BACKGROUND
This is a breach of contract case. On September 1, 2022, Plaintiff Deafriders Trucking LLC (Plaintiff) filed this action against Defendant Valley Power System, Inc. (Defendant) and Does 1 to 100, alleging causes of action for breach of contract, negligence, breach of covenant of good faith and fair dealing, quantum meruit, unjust enrichment, and exemplary damages.

On August 14, 2023, Plaintiff filed the instant motion to strike the settlement agreement. On September 13, 2023, Defendant opposed the motion. On September 18, 2023, Plaintiff replied.

LEGAL STANDARD – Motion to Strike
“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) 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.” (Id., § 436.)

OBJECTIONS
The Court OVERRULES Defendant’s objections to the Declarations of Richard L. Grant and Joseph Piros.

PRELIMINARY ISSUES
The Court notes that Defendant’s opposition was filed and served on September 13, 2023, which is one day late based on the hearing of this motion for September 26, 2023. (Code Civ. Proc., § 1005, subd. (b).) Nevertheless, the Court exercises its discretion to still consider the opposition. (Cal. Rules of Court, rule 3.1300, subd. (d); Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.) The Court admonishes Defendant to comply with the Code of Civil Procedure timing and filing requirements going forward.

The Court further notes that Plaintiff’s reply contains a supplemental declaration. Generally, new evidence is not permitted on reply unless it fills in gaps in the evidence created by the opposing party’s opposition and is not raising new substantive issues for the first time; otherwise, a further hearing would be required to permit the opposing party to respond. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Thus, to the extent the supplemental declaration submitted does not respond to issues raised in the opposition, the Court declines to consider it.

DISCUSSION – Motion to Strike
Meet and Confer
Per Code of Civil Procedure section 435.5, subdivision (a), the parties were required to meet and confer before bringing this motion. (Code Civ. Proc., § 435.5, subd. (a).) Plaintiff’s declaration with the moving papers provides no indication that Plaintiff attempted to meet and confer with Defendant before filing this motion to strike. (See generally, Grant Decl.) Plaintiff’s supplemental declaration is also unavailing, as it vaguely claims the parties have been meeting and conferring essentially for the past year or so, and provides no indication that the parties met and conferred telephonically before the motion was filed. (See Supp. Grant Decl., ¶¶ 2-3.)

Nevertheless, the Court may not deny a motion to strike for failure to adequately meet and confer. (Code Civ. Proc., § 435.5, subd. (a)(4).) Therefore, the Court will still consider Plaintiff’s motion to strike, but the Court admonishes Plaintiff to comply with the requirements of the Code of Civil Procedure going forward.

Analysis
“As used in this section: (1) The term ‘complaint’ includes a cross-complaint. (2) The term ‘pleading’ means a demurrer, answer, complaint, or cross-complaint.” (Code Civ. Proc., § 435, subd. (a).)

Plaintiff seeks to strike a settlement agreement purportedly entered into between the parties on October 6, 2021 (Settlement Agreement), (Grant Decl., Ex. B.), on the bases of fraudulent inducement, misrepresentation, unfair dealings, and bad faith. Defendant contends the motion should be denied for multiple reasons, such as no legal basis for the motion, the memorandum of points and authorities fails to comply with rule 3.1113, subdivision (b) of the California Rules of Court, and for Plaintiff failing to meet and confer before filing the motion.

The Court agrees with Defendant and finds the motion defective on multiple grounds. First, a motion to strike applies to pleadings. (See Code Civ. Proc., §§ 435, 436.) The Settlement Agreement is not a pleading, i.e., it is not a demurrer, answer, complaint, or cross-complaint. (See Id., § 435, subd. (a)(2).) Thus, there is nothing for the Court to strike here. Plaintiff instead seems to be arguing the merits of the case to obtain a summary judgment like ruling declaring the Settlement Agreement void, which is well beyond the scope of a motion to strike. (See Id., §§ 435, 436.)

Second, the Court further agrees with Defendant that Plaintiff’s motion fails to comply with the requirements of rule 3.1113, subdivision (b) of the California Rules of Court. The motion does not appear to contain any sort of memorandum of points and authorities. It contains no statement of facts, no concise statement of the law, nor a discussion of statutes, cases, or textbooks cited in support of the position advanced. (Cal. Rules of Court, rule 3.1113, subd. (b).) It only provides a conclusory summary of bases for purportedly invalidating the Settlement Agreement, which again, as noted above, is not a pleading subject to a motion to strike. (See Code Civ. Proc., § 435, subd. (a)(2).)

Third, the issues with Plaintiff’s meet and confer efforts have been addressed above. (See Code Civ. Proc., § 435.5, subd. (a)(4).)

Finally, Plaintiff’s reply papers improperly attempt to change the scope of the motion to include striking Defendant’s second affirmative defense pled in its Answer to the Complaint. (Reply, 2:2-9.) The Court refuses to consider this line of argument since it was not included in the moving papers. (Jay, supra, 218 Cal.App.4th at pp. 1537-1538.) The reply otherwise appears to repeat the statements made in Plaintiff’s moving papers, none of which are availing for the reasons set forth herein.

Therefore, the Court DENIES Plaintiff’s motion to strike the Settlement Agreement.

CONCLUSION
The Court DENIES the motion to strike the settlement agreement.

Plaintiff is ordered to give notice and provide proof of service of same within five calendar days of the Court’s order.