Judge: Michael P. Linfield, Case: 22STCV15352, Date: 2023-02-28 Tentative Ruling

Case Number: 22STCV15352    Hearing Date: February 28, 2023    Dept: 34

SUBJECT:         Motion to Strike Portions of First Amended Complaint

Moving Party:  Defendant Mohammad Fawaz

Resp. Party:    Plaintiff Rochelle Sterling

Defendant’s Motion to Strike Portions of First Amended Complaint is DENIED.

BACKGROUND:

On May 9, 2022, Plaintiff Rochelle Sterling, as Trustee of the Sterling Family Trust, filed her Complaint against Mohammad M. Fawaz, a.k.a. Mohammad Moet Fawaz, a.k.a. Moet Fawaz.

On December 30, 2022, Plaintiff filed her First Amended Complaint.

On January 26, 2023, Defendant filed his Motion to Strike Portions of First Amended Complaint.

On February 14, 2023, Plaintiff filed her Opposition.

On February 17, 2023, Defendant filed his 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(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(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 references to the Doe Defendants from page 6, line 6; from paragraphs 23 to 26, and from paragraphs 29 to 31. (Motion, p. 3:6–12.) Defendant argues that this is appropriate because the Court did not grant leave for this specific amendment. (Id. at p. 5:12–15.)

Plaintiff opposes the Motion, arguing: (1) that the references to the Doe Defendants in the First Amended Complaint are not changes to the allegations made in the Complaint; (2) that this is just a clarification of allegations and causes of actions, not an attempt to add claims or parties; and (3) that the right of liberal amendment applies here. (Opposition, pp. 2:14–17, 3:26–27, 4:5.) Plaintiff ultimately argues that this is just a delay tactic. (Id. at p. 4:19–20.)

Defendant reiterates his arguments in his Reply.

        “The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings and proceedings which, in the opinion of said court, does not affect the substantial rights of the parties.”  (Code Civ. Proc., § 475; Cal. Const., Art. VI, § 13.)

The references to the Doe Defendants, whether new or not, do not affect the substantial rights of the parties. Defendant has not made any arguments that would indicate why Plaintiff would not have been able to request and obtain leave of Court to file a first amended complaint that included leave to include Doe defendants.

Ultimately, Plaintiff still has the burden of proving her case. If she wants to prevail against the Doe Defendants, she will eventually need to name them, and they will have the opportunity to defend their own rights.

The Court DENIES Defendant’s Motion.

III.     Conclusion

Defendant’s Motion to Strike Portions of First Amended Complaint is DENIED.