Judge: Melvin D. Sandvig, Case: 23CHCV00614, Date: 2025-01-17 Tentative Ruling

Case Number: 23CHCV00614    Hearing Date: January 17, 2025    Dept: F47

Dept. F47

Date: 1/17/25                                                         TRIAL DATE: 6/16/25

Case #23CHCV00614

MOTION FOR LEAVE TO FILE LATE MOTION TO STRIKE

Motion filed on 12/16/24.

MOVING PARTY: Defendant Deborah Lopez Nacisvalencia

RESPONDING PARTY: Plaintiff Herlin Martinez Osorio

NOTICE: ok

RELIEF REQUESTED: An order granting Defendant Deborah Lopez Nacisvalencia leave to file a late Motion to Strike General Damages from the complaint as to Plaintiff Herlin Martinez Osorio only.

RULING: The motion is denied.

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of a motor vehicle collision that occurred on 9/19/21.  On 3/2/23, Plaintiffs filed this action against Defendant Deborah Lopez Nacisvalencia (Defendant) for: (1) Motor Vehicle and (2) General Negligence.  On 4/3/23, Defendant answered the complaint. 

On 12/16/24, Defendant filed and served the instant motion seeking an order granting Defendant leave to file a late Motion to Strike General Damages from the complaint as to Plaintiff Herlin Martinez Osorio (Osorio) only.  Osorio has opposed the motion and Defendant has filed a reply to the opposition. 

ANALYSIS

Defendant makes this motion pursuant to CCP 473(a)(1).  (See Notice of Motion, p.2:1).  However, CCP 473(a)(1) does not provide authority for granting leave to file a late motion to strike.  Rather, CCP 473(a)(1) provides:

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

The only other authority cited in the motion relates to evidence at trial.  (See Motion, p.3:25-p.4:19).  As such, Defendant has failed to provide any authority for the relief requested.

Even if Defendant had provided authority to support granting Defendant leave to file a late motion to strike, Defendant has failed to provide a justifiable reason why Defendant did not seek to strike Osorio’s claim for general damages within the time limit set forth in CCP 435(b)(1), especially considering the evidence submitted with the opposition which indicates that Osorio’s insurer declined coverage for the incident as early as 11/11/21, more than a year before this action was filed.  (See Ekmekchyan Decl. ¶3, Ex.1).

Moreover, it does not appear that a motion to strike would have been the proper vehicle to address Defendant’s contention that Osorio may not claim general damages in this action.  The grounds for a motion to strike must appear on the face of the pleading under attack or from matter which the court may judicially notice.  See CCP 437(a).  It is not clear how the correspondence from Osorio’s insurance carrier, which is not attached to the complaint and on which the motion to strike would seemingly be based, would be the proper subject of judicial notice. 

CONCLUSION

The motion is denied.