Judge: Melissa R. Mccormick, Case: "Ceats, Inc. v. Skane, et al.", Date: 2022-09-15 Tentative Ruling

Defendant David Affeld’s Motion to Strike Second Amended Complaint

Defendant David Affeld moves to strike portions of plaintiff Ceats, Inc.’s second amended complaint.  For the following reasons, the motion to strike is denied.

Pursuant to Code of Civil Procedure Section 436 the court may strike out “any irrelevant, false, or improper matter inserted in any pleading.”  The use of the motion must be “cautious and sparing” and is not intended to be used as a “procedural ‘line item veto’ for the civil defendant.”  PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.

Affeld’s motion is precisely the type of motion to strike the PH II, Inc. court cautioned against, including because Affeld seeks to use a motion to strike to evade the rule that a demurrer does not lie to a portion of a cause of action.  None of the alleged deficiencies Affeld identifies constitutes “substantive defect[s] . . . clear from the face of [the] complaint.”  PH, Inc., 33 Cal.App.4th at 1683-84.  Moreover, Affeld’s factual arguments about the allegations with which he disagrees cannot be resolved on a motion to strike.

In Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333, 513 P.3d 155, 184, the California Supreme Court held a plaintiff “may recover treble damages and attorney’s fees under section 496(c) when property has been obtained in any manner constituting theft.”  See also Bell v. Feibush (2013) 212 Cal.App.4th 1041, 1046 (holding criminal conviction is not a prerequisite to recovery of treble damages by person injured by violation of section 496(a) and trial court did not err in awarding plaintiff treble damages on fraud claim); Switzer v. Wood (2019) 35 Cal.App.5th 116.  Affeld’s motion to strike the requests for treble damages and attorneys’ fees is denied.

Affeld is ordered to file and serve an answer to the second amended complaint by September 26, 2022.

Plaintiff Ceats, Inc. to give notice.