Judge: Melvin D. Sandvig, Case: 23CHCV02952, Date: 2024-04-04 Tentative Ruling
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Case Number: 23CHCV02952 Hearing Date: April 5, 2024 Dept: F47
Date: 4/5/24
Case #23CHCV02952
DEMURRER & MOTION TO STRIKE TO THE ORIGINAL CROSS-COMPLAINT
Demurrer & Motion to Strike filed on 2/13/24.
MOVING PARTY: Cross-Defendant Big Battery, Inc.
RESPONDING PARTY: Cross-Complainant Xi Wang
NOTICE: ok
Demurrer is to the 2nd, 5th, 7th and 8th* causes of action:
1. Corporations Code 709
2. Dissolution of Corporation
3. Breach of Fiduciary Duty
4. Fraud – Promise Without Intent to Perform
5. Breach of Oral Contract
6. Accounting
7. Defamation
8. Injunctive Relief
*Big Battery fails to provide clear notice as to which causes of action are the subject of the demurrer. The notice indicates that Big Battery is demurring to the 3rd, 4th, 5th, 6th, 7th and 8th causes of action. However, the Demurrer and Memorandum of Points and Authorities indicate that Big Battery is demurring to the 2nd, 5th, 7th and 8th causes of action.
RELIEF REQUESTED IN MOTION TO STRIKE: An order striking the 3rd, 4th, 5th, 7th and 8th causes of action, allegations and the prayers for punitive damages and attorneys' fees.
RULING: The demurrer is sustained and the motion to strike is granted, both with 30 days leave to amend.
On 11/14/23, Defendant/Cross-Complainant Xi Wang (Xi Wang) answered Plaintiff Big Battery Inc.’s (Big Battery) complaint and filed the subject cross-complaint against Big Battery and Clifford Eric Lundgren (Lundgren) alleging causes of action for: (1) Corporations Code 709, (2) Dissolution of Corporation, (3) Breach of Fiduciary Duty, (4) Fraud – Promise Without Intent to Perform, (5) Breach of Oral Contract, (6) Accounting, (7) Defamation and (8) Injunctive Relief. On 11/16/23, a summons on the cross-complaint was issued. It is not clear when the cross-complaint and summons thereon were served as no proof of service for same has been filed.
Big Battery’s attorney states that on 1/11/24, he was unable to meet and confer with Xi Wang’s counsel so he, subsequently, filed a declaration in support of automatic extension. (J. Wang Decl. ¶2). Although a copy of the extension declaration is attached as an exhibit, no such declaration was filed with the court. (See J. Wang Decl., Ex.A, eCourt generally). Attorney Wang also states that on 1/11/24, Xi Wang and Big Battery entered into a stipulation to extend the period to respond by 30 days, from 1/12/24 to 2/12/24. (J. Wang Decl. ¶3, Ex.B). Attorney Wang then states that on 2/9/24, he executed a declaration regarding meet and confer wherein he states under penalty of perjury that Xi Wang failed to respond to meet and confer or otherwise failed to meet and confer in good faith. (J. Wang Decl. ¶4, Ex.C).
On 2/13/24, Big Battery filed (served on 2/12/24) the instant demurrer to the 2nd, 5th, 7th and 8th causes of action and motion strike which seeks an order striking the 3rd, 4th, 5th, 7th and 8th causes of action, allegations regarding and the prayers for punitive damages and attorneys' fees. The Court notes that Big Battery fails to provide clear notice as to which causes of action are the subject of the demurrer. The notice indicates that Big Battery is demurring to the 3rd, 4th, 5th, 6th, 7th and 8th causes of action. However, the Demurrer and Memorandum of Points and Authorities indicate that Big Battery is demurring to the 2nd, 5th, 7th and 8th causes of action.
On 3/22/24, Xi Wang filed and served oppositions to the demurrer and motion to strike. Xi Wang’s attorney states that contrary to the meet and confer declaration of Big Battery’s counsel, he was never contacted regarding a request to meet and confer. (See Walker Decl. ¶3). Xi Wang’s attorney states that on 3/18/24, he contacted Big Battery’s attorney regarding the mandatory meet and confer requirements and included a proposed First Amended Cross-Complaint requesting comments; however, he never received a reply email. (Walker Decl. ¶4). (The Court notes that the declaration of Donald Walker, Xi Wang’s attorney, does not comply with the requirements of CCP 2015.5).
On 3/27/24, Big Battery filed and served replies to the oppositions. Big Battery’s attorney fails to address Xi Wang’s counsel’s claim that he falsely represented that Xi Wang failed to respond to meet and confer efforts. The Court further notes that Big Battery’s attorney provides no explanation as to why he did not respond to Xi Wang’s meet and confer efforts made after Xi Wang received the demurrer and motion to strike. Rather, Big Battery contends that the proposed First Amended Cross-Complaint does not resolve all of the issues presented in the demurrer and motion to strike. However, Xi Wang’s counsel’s email communication sent with the proposed First Amended Cross-Complaint also requested comments. (Walker Decl., Ex.2).
Xi Wang had a right to file a First Amended Cross-Complaint after receiving the demurrer and motion to strike if the First Amended Cross-Complaint was filed and served no later than the date for filing the oppositions (i.e., 9 court days before the hearing). CCP 472(a); CCP 1005(b). Based on this statutory right and Xi Wang’s seeming concession that the cross-complaint needs amending, the Court sustains the demurrer and grants the motion to strike with leave to amend.
The Court orders the parties to meet and confer before Xi Wang files a First Amended Cross-Complaint to attempt to resolve the issues Big Battery has with the proposed First Amended Cross-Complaint.