Judge: Mark A. Young, Case: 22SMCV00063, Date: 2023-09-13 Tentative Ruling
Case Number: 22SMCV00063 Hearing Date: March 14, 2024 Dept: M
CASE NAME: Cienega
Ventures LLC v. 730 N. La Cienega LLC, et al.
CASE NO.: 22SMCV00063
MOTION: Motion
to Strike
HEARING DATE: 3/14/2024
Legal
Standard
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. (CCP § 435(b)(1); Cal. Rules of Court, Rule
3.1322(b).) The court may, upon a motion or at any time in its discretion and
upon terms it deems proper: (1) strike out any irrelevant, false, or improper
matter inserted in any pleading; or (2) strike out all or any part of any
pleading not drawn or filed in conformity with the laws of California, a court
rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a
pleading which is not essential to the claim is surplusage; probative facts are
surplusage and may be stricken out or disregarded”].)
“Liberality in permitting amendment
is the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to
show in what manner plaintiff can amend the complaint,
and how that amendment will change the legal effect of the pleading. (Id.)
Request
for judicial notice
Defendant requests that the Court take judicial notice of the docket and
complaint in the matter entitled Mack v. Cienega Ventures LLC, et al.,
Los Angeles Superior Court Case No. BC344244. This request is GRANTED. (Evid.
Code § 452(d).)
Analysis
Defendants 730 N. La Cienega LLC,
Koi LP and Nick Haque move to strike certain paragraphs of Plaintiff Cienega
Ventures LLC’s Fourth Amended Complaint (4AC). Defendant asserts that the
following paragraphs should be stricken:
“l. ‘In the event that Lessee’s use
of the Premises requires modifications or additions to the Premises in order to
be in [Americans with Disabilities Act] compliance, Lessee agrees to make any
such necessary modifications and/or additions at Lessee’s expense.’ (Id.,
¶ 50.)” (4AC ¶ 19(1).)
“Make modifications or additions to
the Premises to render it compliant with
the Americans with Disabilities Act as the same applies to
restaurants of the sort that Defendants operated on the Premises, including
with respect to the construction and maintenance of a wheelchair ramp at the
entrance and compliant restroom facilities. (The Premises was not compliant
with ADA laws and regulations in these respects during the time during the
lease term and given the nature of Defendants’ use thereof.)” (4AC ¶ 23(h))
Defendants argue that these allegations
assert a time-barred claim for breach of contract based on the alleged ADA
violation. Defendants reason that this claim is a decade outside of the applicable
four-year limitations period because: (1) any obligation to build a ramp and
new restrooms existed at the time of the 2012 Lease; (2) prior lawsuits show
notice of ADA issues over a decade ago; (3) Paragraph 50 of the Lease does not
require Defendants to make the restaurant ADA compliant; and (4) Defendants
mooted the claim by vacating the Premises ten months ago.
In support of these arguments,
Defendants cite a series of extrinsic facts related to prior ADA compliance
lawsuits and party building inspections. As to the prior ADA lawsuits, the
Court granted judicial notice of the docket and complaint. Even though the Court
took judicial notice of these records, these documents do not demonstrate that
the ADA violations pled in this matter are time barred. Critically, nothing in
the noticed documents would show that the alleged violations in the prior suit
are the same violations in this suit. Defendant offers nothing but extrinsic
speculation that the prior lawsuit would have put Plaintiff on notice of the
violations alleged in this matter. Defendant also proffers counsel’s
declaration. (Haque Decl., ¶¶ 3-4.) However, it would be wholly inappropriate
for the Court to consider this evidentiary declaration on the merits of a
motion to strike. Thus, Defendants’ cited evidence does not support their
motion to strike.
Defendant also contends that paragraph
50 of the Lease, by its own terms, does not require Defendants to make the
restaurant ADA compliant. Paragraph 50 relevantly provides: “In the event that
Lessee’s use of the Premises requires modifications or additions to the
Premises in order to be in [Americans with Disabilities Act] compliance, Lessee
agrees to make any such necessary modifications and/or additions at Lessee’s
expense.” Thus, by the Lease’s terms, Defendants agreed to make any
“necessary modifications and/or additions” at their own expense if “Lessee’s
use of the Premises requires modifications or additions to the Premises in
order to be in compliance.” Based on the plain language of the Lease, if the
ADA required modifications to the Premises, then Lessee agreed to make those modifications
at their own expense. Plaintiff’s interpretation of the Lease is therefore
reasonable.
Defendants also contend that there
is no allegation that Koi restaurant operated in violation of the ADA. However,
the specific allegations that Defendants attack states that “The Premises was
not compliant with ADA laws and regulations in these respects [wheelchair ramp
and restroom facilities] during the time during the lease term and given the
nature of Defendants’ use thereof.” (¶ 23(h).)
Defendants
fail to show that the four-year statute of limitations for breach of contract
would render these allegations irrelevant, false, or improper. Unless a
complaint affirmatively discloses on its face that the statute of limitations
has run, a demurrer and motion to strike must be overruled. (See Lockley v.
Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal.App.4th 875, 881 [“It must appear clearly and affirmatively that, upon the
face of the complaint, the right of action is necessarily barred”].) Defendant
speculates that any obligation to bring the property to ADA compliance must
have only existed in 2012. However, the 4AC does not affirmatively show there
were ADA violations in 2012. The 4AC alleges that the property was not in
compliance “during the lease term,” which would include the statutory period. Thus,
the 4AC does not affirmatively show that any claims based on the alleged
ADA violations would be time barred.
Lastly, Defendants fail to explain
how the allegations are moot. Defendants contend that they vacated the premises
since January 2023. However, these bald assertions are extrinsic to the
complaint, and will not be considered. Further, even if Defendants left the
premises, Plaintiff still alleges that Defendants’ failure to construct and
maintain a wheelchair ramp and compliant restroom facilities caused damages
during the term of the lease. (4AC ¶¶ 23-24.) Such damages would not be mooted
by returning possession.
Accordingly, the motion to strike
is DENIED.