Judge: Mark H. Epstein, Case: 21SMCV00085, Date: 2023-01-20 Tentative Ruling

Case Number: 21SMCV00085    Hearing Date: January 20, 2023    Dept: R

The motion to strike is GRANTED IN PART AND DENIED IN PART.

This started out as a relatively simple case for payment of unpaid rent and damage allegedly caused to plaintiff’s apartment after defendants (who were tenants) vacated.  There was a default, but defendants successfully moved to vacate the default.  Plaintiff seems to have taken that personally, and in the amended pleadings plaintiff has converted what is basically a contract action into a tort action. 

The motion to strike claims that that much of the information in the complaint came from a mediation and that there are lots of allegations that are irrelevant and scurrilous.  Defendants also claim that certain allegations relating to fraud should be stricken because they cannot really form the basis for fraud.  Defendants disagree and argue that defendants had lots of affirmative duties of disclosure when renting the apartment.

The court is not going to parse through the complaint (again) looking for bad allegations.  Plaintiff has deleted the worst of them after it was ordered to do so in the last motion.  However, plaintiff has overpled the case, and in part the overpleading is vulnerable to this motion.  Specifically, as a legal matter, defendants had no general affirmative duty of disclosure when applying for a lease.  They cannot lie on the rental application, but they don’t have to disclose information if they don’t want to do so.  Because there was no affirmative duty of disclosure, the fraud allegations based on the failure to disclose are properly stricken.  Those allegations are paragraphs 117(c), (e), and (f).  Further, if the information in the complaint came from a formal mediation, the court will strike that as well.

The court generally agrees that the complaint is overpled and the court has strong doubts that some of the allegations will survive summary judgment.  Perhaps, as plaintiff alleges, defendants rented the apartment with the intent of destroying it and therefore they committed fraud when they said in the lease that they would maintain the apartment, but that will be very hard to prove absent some pre-existing animus.  That said, the court cannot go there on a motion to strike; the court must assume all of the factual assertions are true and that the proof will be forthcoming at the appropriate time.  Only if those facts still do not support a cause of action can they be stricken.

Leave to amend is DENIED.  This has gone on too long, and plaintiff is more likely to use the leave to amend to add other allegations that lead to yet another motion.  This is also the third amended complaint.  The court assumes that this is the best plaintiff has got.

Defendants have 30 days to answer.