Judge: Michael P. Linfield, Case: 22STCV12331, Date: 2023-01-04 Tentative Ruling

Case Number: 22STCV12331    Hearing Date: January 4, 2023    Dept: 34

SUBJECT:         Motion to Strike Portions of Complaint

Moving Party:  Defendant Strain Balboa Caregivers, Inc.

Resp. Party:    Plaintiff Breana Sesma

Defendant’s Motion to Strike is DENIED.

BACKGROUND:

On April 12, 2022, Plaintiff Breana Sesma filed her Complaint against Strain Balboa Caregivers, Inc., Strain Balboa Caregivers, and Strain on causes of action related to violations of the Fair Employment and Housing Act (FEHA).

On October 21, 2022, by request of Plaintiff, the Clerk’s Office dismissed without prejudice Defendants Strain Balboa Caregivers and Strain from the Complaint.

On November 22, 2022, Defendant filed its Motion to Strike Portions of Complaint. Defendant concurrently filed its Proposed Order.

On December 20, 2022, Plaintiff filed her Opposition.

On December 23, 2022, Defendant filed its Reply.

ANALYSIS:

I.           Legal Standard

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court, rule 3.1322.)¿¿ 

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and 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. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)¿¿ 

II.        Discussion

Defendant moves the Court to strike the following from Plaintiff’s Complaint:

(1)       Paragraph 75: “as well as attorney’s fees and costs”; and

(2)       Prayer (on the first through sixth causes of action): “1. For punitive damages in an amount to be proven at trial”.

(Motion, p. 2:7–9.)

Defendant argues that this would be appropriate because: (1) Plaintiff is not entitled to recover attorney’s fees by way of her seventh cause of action for unfair competition; and (2) Plaintiff does not set forth specific legal or factual allegations showing fraud, oppression, or malice. (Motion, pp. 5:4–5, 6:1–2.)

Plaintiff only opposes the Motion as to striking her prayer for punitive damages. Plaintiff is silent as to striking the phrase “as well as attorney’s fees and costs” from paragraph 75.

Whether Defendant acted with fraud, oppression, or malice is a question of fact that will be determined by the jury based on the evidence presented at trial. Questions of fact are not proper basis for a motion to strike.

In addition, the Court must disregard any defect in the pleadings which does not affect the substantial rights of the parties. (Code Civ. Proc., § 475.) Whether paragraph 75 is stricken will make absolutely no difference to the parties. If Plaintiff succeeds on other causes of action she will be entitled to attorney's fees.  Plaintiff has merely referenced attorney’s fees in her UCL cause of action. It will still ultimately be her burden to prove that she is entitled to them.

The Court DENIES Defendant’s Motion to Strike.

III.      Conclusion

Defendant’s Motion to Strike is DENIED.