Judge: Mark E. Windham, Case: LAM01K18855, Date: 2023-03-30 Tentative Ruling
Case Number: LAM01K18855 Hearing Date: March 30, 2023 Dept: 26
MOTION TO STRIKE
(CCP §§ 435, 436)
TENTATIVE RULING:
Defendants Warren Summer and Karin
Winkler’s Motion to Strike Memorandum of Costs after Judgment is DENIED.
ANALYSIS:
On September 24, 2001, Plaintiff Thomas Beck, Esq.
(“Plaintiff”) filed the instant action for breach of retainer agreement against
Defendants Warren Summer and Karin Winkler (“Defendants”). Judgment was entered
on January 8, 2003. Acknowledgment of Satisfaction of Judgment (Partial) was
filed on January 5, 2006. Other documents, including Applications and Orders
for Appearance and Examination were subsequently filed. The judgment was
renewed on January 8, 2013. Defendant’s Motion to Vacate Renewal of Judgment
was denied on February 22, 2023. (Minute Order, 02/22/23.) Plaintiff filed a
Memorandum of Costs after Judgment on January 27, 2023.
Defendants filed
the instant Motion to Strike Memorandum of Costs after Judgment on February 16,
2023. Plaintiff filed an opposition on March 17, 2023.
Discussion
The Motion to Strike is brought pursuant to Code of Civil
Procedure section 436, subdivision (b) on the grounds that the Memorandum of
Costs after Judgment was not filed in conformity with the laws of this State.
The statute provides that:
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.
(Code Civ. Proc., § 436, subd. (b).) Specifically,
Defendants argue that the proof of service of the Memorandum of Costs after
Judgment shows it was served by Plaintiff, in violation of Code of Civil
Procedure section 1013a.
First, a motion to strike may only be made as to a pleading.
(Code Civ. Proc., § 436, subd. (b)(1) [“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 . . . .”].) A pleading is defined as “a demurrer, answer,
complaint, or cross-complaint.” (Code Civ. Proc., § 436, subd. (a)(2).) Also,
motions to strike in courts of limited jurisdiction may only challenge
pleadings on the basis that “the damages or relief sought are not supported by
the allegations of the complaint.” (Code of Civ. Proc., § 92, subd. (d).) Third,
a motion to strike must be accompanied by a meet and confer declaration. (Code
Civ. Proc., § 435.3.) Defense counsel does not indicate any meet and confer
effort prior to bringing this Motion. (Motion, Smith Decl.) Finally, the Motion
cites no authority for the proposition that an improper proof of service is
grounds to strike the entire document. Therefore, the Motion to Strike is
denied.
Conclusion
Defendants Warren Summer and Karin
Winkler’s Motion to Strike Memorandum of Costs after Judgment is DENIED.
Court clerk to give notice.