Judge: Melvin D. Sandvig, Case: 22CHCV00705, Date: 2023-02-02 Tentative Ruling
Case Number: 22CHCV00705 Hearing Date: February 2, 2023 Dept: F47
Dept. F47
Date: 2/2/23
Case #22CHCV00725
MOTION TO
STRIKE
Motion to Strike filed on 10/25/22.
MOVING PARTY: Defendant Aram Abgaryan
RESPONDING PARTY: Plaintiff Farmers Insurance Exchange
NOTICE: ok
“It
was the intent of DEFENDANT CRIMINAL ENTERPRISE 1 and DOES 1 through 5 to set
up and operate within the DEFENDANT UNIT an illegal marijuana extraction
processing laboratory commonly referred to as a ‘honey oil laboratory.’ Illegal
honey oil laboratories have a propensity to blow up.”
RULING: The motion is granted, in part, with 30
days leave to amend, and denied in part.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This is an insurance subrogation action. Plaintiff Farmers Insurance Exchange
(Plaintiff) alleges that it, “its subsidiaries, affiliates, and/or parent
companies, duly organized and existing under and by virtue of the laws of the
State of California and authorized to do business in the State of California as
an insurer” issued an insurance policy to the owner of Owensmouth Business Park
(Owner) which was in effect on the date of the incident which is the subject of
this action. (See Complaint ¶¶1, 8). Plaintiff alleges that on 9/18/17 Defendant
Aram Abgaryan purchased a commercial condo unit within Owensmouth Business Park
out of which he, and the other defendants, operated an illegal marijuana
extraction processing laboratory (honey oil laboratory). (Complaint ¶9). Pursuant to that purchase, Abgaryan and Owner
agreed to the CC&Rs which governed Owensmouth Business Park. (Complaint ¶10). The CC&Rs allegedly included a bar
against noxious or offensive activities at the business park and required all
unit owners to comply with the requirements of local or state health
authorities and all other governmental authorities with respect to the light
industrial and business use of each condo.
(Complaint ¶11).
Plaintiff alleges that Abgaryan and the other defendants
ignored the CC&Rs by operating the honey oil laboratory on the
premises. (Complaint ¶12). As a result, on or about 9/21/19, Plaintiff
alleges that the condo unit purchased by Abgaryan blew up and caught fire
causing damage to Plaintiff’s insured and the death of an individual working
with/for defendants. (Complaint
¶13). Additionally, Abgaryan and the
other defendants were arrested and charged with involuntary manslaughter, drug
manufacturing and controlling a space, building, or room, or allowing someone
to use same for the purpose of unlawfully manufacturing, storing or
distributing any controlled substance
for sale or distribution. (Complaint ¶14).
Based on the foregoing, on 8/30/22, Plaintiff filed its
complaint for equitable subrogation for damages to property alleging causes of
action for: (1) negligence, (2) negligence per se, (3) gross negligence and (4)
strict liability for ultrahazardous activities.
On 10/25/22, Abgaryan filed and served a demurrer to the
entire complaint on the grounds that Plaintiff has failed to allege standing
thereby making the entire complaint uncertain and also that Plaintiff has
failed to allege sufficient facts to state any of the causes of action alleged
in the complaint. Plaintiff opposed the
demurrer. On 1/4/23, Abgaryan’s demurrer
was sustained with 60 days leave to amend.
(See 1/4/23 Minute Order).
On 10/25/22, Abgaryan also filed a motion to strike
portions of the complaint. For unknown
reasons, Abgaryan scheduled the motion to strike for hearing on 2/2/23 rather
than the same day as the demurrer. The
motion to strike seeks an order striking: (1)
every reference to Defendant Aram Abgaryan as “CRIMINAL ENTERPRISE I” in
the Complaint (Complaint, p. 2, line 28- p.3, line 1; page 2, lines 2-3 and
line 22; page 3, line 16 and lines 21-22; page 4, line 6, line 15, lines 19-20
and line 24; and page 5, lines 15 and 18)* and (2) part of ¶9 of the Complaint
at p.3:21-24 which states:
“It was the intent of DEFENDANT
CRIMINAL ENTERPRISE 1 and DOES 1 through 5 to set up and operate within the
DEFENDANT UNIT an illegal marijuana extraction processing laboratory commonly
referred to as a ‘honey oil laboratory.’ Illegal honey oil laboratories have a
propensity to blow up.”
*The Court notes that certain of the portions of the
complaint specified in the notice of motion do not include the term CRIMINAL
ENTERPRISE I (i.e., p.2:28-p.3:1) and Abgaryan has failed to specify other
portions of the complaint which include the term CRIMINAL ENTERPRISE I
(i.e., p.3:19).
Plaintiff has opposed the motion to strike.
ANALYSIS
Abgaryan’s Request for Judicial Notice (RJN) is granted
only as to the existence of the documents in the court record.
CCP 431.10 provides:
“(a) A material allegation in a
pleading is one essential to the claim or defense and which could not be
stricken from the pleading without leaving it insufficient as to that claim or
defense.
(b) An immaterial allegation in a
pleading is any of the following:
(1) An allegation that is not
essential to the statement of a claim
or defense.
(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient
claim or defense.
(3) A demand for judgment requesting
relief not supported by the allegations of the complaint or cross-complaint.
(c) An “immaterial allegation”
means “irrelevant matter” as that term is used in Section
436.”
(emphasis added)
CCP 436 provides:
“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.”
When placed together the words “criminal enterprise” imply
a distinct meaning under the law. See
21 U.S.C 848 (referenced as example only as the statute has been recognized as
repealed by implication – U.S. Stitt - 4th Cir.(Va.) 552 F.3d
345). Since the complaint does not
include facts which indicate that Abgaryan was part of a “criminal enterprise”
as recognized under the law, the Court finds that the use of that term in the
complaint is immaterial and/or irrelevant as a matter of law.
However, the Court finds that the remaining portion of
paragraph 9 of the complaint sought to be stricken (once the reference to
“CRIMINAL ENTERPRISE I) is removed to be acceptable.
CONCLUSION
As noted above, pursuant to motion or at any time in its
discretion, the Court may strike out irrelevant matter. CCP 436(a).
Therefore, in an amended pleading, Plaintiff is to remove all references
to defendants, including, Abgaryan, as “CRIMINAL ENTERPRISE I,” “CRIMINAL
ENTERPRISE II,” and/or “CRIMINAL ENTERPRISE III” whether referenced in the
notice of motion or not.