Judge Melvin D. Sandvig, Case Number: 21CHCV00965, Date: 2023-08-24 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 21CHCV00965, Date: 2023-08-24 Tentative Ruling

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Case Number: 21CHCV00965 Hearing Date: February 2, 2024 Dept: F47

Dept. F47

Date: 2/2/24 TRIAL DATE: 8/26/24

Case #21CHCV00965

SPECIAL MOTION TO STRIKE

Motion filed on 12/15/23.

MOVING PARTY: Cross-Defendants L.A. Tire Tech, Inc. and Gerard Neglio

RESPONDING PARTY: Cross-Complainant SiteOne Landscape Supply, LLC

NOTICE: ok

RELIEF REQUESTED: An order, pursuant to CCP 425.16, striking the 1^st cause of action for breach of contract and the 2^nd cause of action for express indemnity in the cross-complaint of SiteOne Landscape Supply, LLC.

RULING: The motion is denied.

SUMMARY OF FACTS & PROCEDURAL HISTORY

Plaintiff/Cross-Defendant L.A. Tire Tech, Inc. (L.A. Tire Tech) is a fleet maintenance company who allegedly provided maintenance and repair services to Defendant/Cross-Complainant SiteOne Landscape Supply, LLC (SiteOne) pursuant to an oral agreement. As of 8/21/21, SiteOne notified L.A. Tire Tech that all of its services were no longer needed by SiteOne. L.A. Tire Tech contends that at that time it had submitted over $180,000.00 in invoices for services performed by L.A. Tire Tech on the fleet of SiteOne as requested by SiteOne. L.A. Tire Tech contends that, despite repeated demands, SiteOne has failed and refuses to pay the invoices.

On 12/17/21, L.A. Tire Tech filed this action against SiteOne for: (1) Goods and Services Rendered (Common Count), (2) Account Stated (Common Count), (3) Open Book Account (Common Count) and (4) Breach of Oral Contract. On 3/7/22, L.A. Tire Tech filed its operative First Amended Complaint for: (1) Goods and Services Rendered (Common Count), (2) Open Book Account (Common Count) and (3) Breach of Oral Contract. On 3/18/22, SiteOne answered the First Amended Complaint.

On 10/16/23, this Court granted SiteOne’s motion for leave to file a cross-complaint against L.A. Tire Tech and Gerard J. Neglio (Neglio), the sole owner of L.A. Tire Tech, for: (1) Breach of Contract and (2) Express Indemnity. After meet and confer efforts failed to resolve the issues L.A. Tire Tech and Neglio had with the cross-complaint, on 11/17/23, L.A. Tire Tech and Neglio filed and served their demurrer to the entire cross-complaint and motion to strike which sought to strike paragraph 6 from the cross-complaint. The demurrer and motion to strike were scheduled for hearing on 1/2/24.

On 12/15/23, L.A. Tire Tech filed and served the instant Special Motion to Strike SiteOne’s entire cross-complaint which was originally scheduled for hearing on 6/21/24 and then, on 12/18/23, rescheduled by L.A. Tire Tech to 2/2/24.

On 12/18/23, SiteOne filed and served oppositions to L.A. Tire Tech’s demurrer and motion to strike and on 12/22/23, L.A. Tire Tech filed and served replies to the oppositions. On 1/2/24, the Court sustained the demurrer with 15 days leave to amend and granted the motion to strike without leave to amend. (See 1/2/24 Minute Order). On 1/17/24, pursuant to this Court’s order, SiteOne filed and served its First Amended Cross-Complaint.

On 1/22/24, SiteOne filed and served its opposition to the Special Motion to Strike and on 1/26/24, L.A. Tire Tech filed and served its reply to the opposition.

ANALYSIS

In part, the opposition argues that the instant motion is moot due to the filing of the First Amended Cross-Complaint pursuant to this Court’s 1/2/24 order. (See Opposition, p.4:25-28, fn.1 citing JKC3H8 (2013) 221 CA4th 468, 477-478. In the reply, L.A. Tire Tech argues that the First Amended Cross-Complaint must be automatically dismissed because it was filed while the anti-SLAPP motion/special motion to strike was pending. See Salma (2008) 161 CA4th 1275, 1281-1282, 1294; JKC3H8, supra; Navellier (2003) 106 CA4th 763, 772; Simmons (2001) 92 CA4th 1068, 1073-1074; Sylmar Air Conditioning (2004) 122 CA4th 1049, 1053-1056.

Neither SiteOne nor L.A. Tire Tech cite Oakland Bulk & Oversized Terminal, LLC (2020) 54 CA5th 738. If a defendant/cross-defendant has a demurrer and/or a “standard” motion to strike heard before a special motion to strike, the trial court may postpone the special motion to strike in favor of a new motion addressed to an amended complaint resulting from the demurrer and/or standard motion to strike. Id. at 750-751.

Here, the Court did not postpone the hearing on L.A. Tire Tech’s special motion to strike in favor of ruling on L.A. Tire Tech’s demurrer and motion to strike addressing the same pleading. Rather, L.A. Tire Tech filed and served the instant Special Motion to Strike approximately a month after filing and serving its demurrer and standard motion to strike and scheduled the hearing after the hearing on the demurrer and standard motion to strike. In the reply, L.A. Tire Tech implies that SiteOne had some burden to request that the hearings be consolidated or that the hearing on the Special Motion to Strike precede the hearing on the demurrer. (See Reply, p.2:26-28, fn.1). The Court finds that if L.A. Tire Tech did not want this motion to be moot due to the ruling on the demurrer and/or standard motion to strike, L.A. Tire Tech had the onus to request that the Court defer ruling on its demurrer and standard motion to strike until after the hearing on its Special Motion to Strike. See Oakland Bulk, supra.

Since L.A. Tire Tech did not do so, the Court finds that the hearing on the demurrer and standard motion to strike properly proceeded before the hearing on the instant motion. This is not a case where L.A. Tire Tech filed its Special Motion to Strike and SiteOne filed an amended pleading in an attempt to avoid the Court’s ruling on the motion. Rather, SiteOne filed its First Amended Cross-Complaint in response to this Court’s order sustaining L.A. Tire Tech’s demurrer to the original Cross-Complaint with leave to amend.

If the Court ruled on the instant motion addressing the original cross-complaint and dismissed the First Amended Cross-Complaint, it would essentially render the parties’ and this Court’s time and effort related to the ruling on the demurrer and standard motion to strike an effort in futility.

Therefore, the Court finds that the instant motion is moot due to the filing of the First Amended Cross-Complaint in response to this Court’s ruling on L.A. Tire Tech’s demurrer to the original Cross-Complaint.

CONCLUSION

The motion is denied as moot. Because the motion is being denied as moot, the Court finds it unnecessary to rule on the parties’ evidentiary objections.