Judge: Michael P. Linfield, Case: 23STCV16797, Date: 2024-04-29 Tentative Ruling
Case Number: 23STCV16797 Hearing Date: April 29, 2024 Dept: 34
SUBJECT: Motion to
Strike Portions of Plaintiffs’ Complaint
Moving Party: Village
Cycle and Supply, Inc.
Resp. Party: Shirley Brown and Janet McCarthy
SUBJECT: Verified
Application to Appear as Counsel Pro Hac Vice
Moving Party: Timothy
Hoffman
Resp. Party: None
The Motion to Strike is DENIED.
The Verified Application to Appear as Counsel Pro Hac Vice is
GRANTED.
BACKGROUND:
On July 18, 2023, Shirley Brown and Janet McCarthy filed their
Complaint against City of Los Angeles, AIDS/LifeCycle, San Francisco AIDS
Foundation, Los Angeles LGBT Center, Trek Bicycle Corporation, Roth
Distributing Co., Inc., and Village Cycle & Supply, Inc. on causes of
action for premises liability, negligence, and products liability.
On August 1, 2023, the Court appointed Janet McCarthy as the guardian
ad litem for Shirley Brown.
On September 12, 2023, City of Los Angeles filed its Answer to the
Complaint.
On September 12, 2023, City of Los Angeles filed its Cross-Complaint
against AIDS/LifeCycle, Los Angeles LGBT Center, Roth Distributing Co., Inc.,
San Francisco AIDS Foundation, Trek Bicycle Corporation, and Village Cycle
& Supply, Inc.
On November 9, 2023, Trek Bicycle Corporation filed its Cross-Complaint
against the City of Los Angeles and AIDS/LifeCycle.
On November 9, 2023, Trek Bicycle Corporation filed its Answer to the
Complaint.
On November 9, 2023, Trek Bicycle Corporation filed its Answer to City
of Los Angeles’s Cross-Complaint.
On November 14, 2023, City of Los Angeles filed its Answer to Trek
Bicycle Corporation’s Cross-Complaint.
On November 27, 2023, San Francisco AIDS Foundation and Los Angeles
LGBT Center filed their Answer to the Complaint.
On November 27, 2023, San Francisco AIDS Foundation and Los Angeles
LGBT Center filed their Answer to City of Los Angeles’s Cross-Complaint.
On December 18, 2023, Village Cycle and Supply, Inc. filed its Motion
to Strike Portions of Plaintiffs’ Complaint (“Motion to Strike”). In support of
its Motion to Strike, Village Cycle and Supply, Inc. concurrently filed: (1)
Memorandum; (2) Declaration of Harrison S. Smith; (3) Proposed Order; and (4)
Proof of Service.
On January 8, 2024, Shirley Brown and Janet McCarthy filed their
Opposition to the Motion to Strike (“Opposition”).
On January 11, 2024, Timothy Hoffman filed: (1) Verified Application to
Appear as Counsel Pro Hac Vice for Plaintiffs (“Application”); (2)
Notice of Hearing; (3) Proposed Order; and (4) Judicial Council Form POS-040,
Proof of Service—Civil.
On January 11, 2024, Village Cycle and Supply, Inc. filed its Reply in
support of its Motion to Strike (“Reply”).
On January 17, 2024, Declaration of Hui Tey was submitted in support of
the Application.
On March 1, 2024, by request of Shirley Brown and Janet McCarthy, the
Clerk’s Office dismissed without prejudice AIDS/LifeCycle from the Complaint.
ANALYSIS:
I.
Motion
to Strike
A. 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, but this time limitation shall
not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435,
subd. (b)(1).)
“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.”
(Code Civ. Proc., §
436.)
“The grounds for
a motion to strike shall appear on the face of the challenged pleading or from
any matter of which the court is required to take judicial notice.” (Code Civ.
Proc., § 437, subd. (a).)
“A notice of motion to strike a portion of a pleading must
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. Specifications
in a notice must be numbered consecutively.” (Cal. Rules of Court, rule
3.1322(a).)
B. Discussion
Village Cycle and Supply, Inc. moves the Court to strike allegations of
malice, fraud, and oppression that would support an award of punitive damages.
(Memorandum, pp. 4:9–10, 6:19–21.)
The Court disagrees.
The Court must assume the truth of the allegations
at this stage of the proceedings. The pleading parties are entitled to plead
their allegations, and they have done so. There is nothing irrelevant, false,
or improper in alleging that malicious, fraudulent, and/or oppressive conduct
has occurred. It will ultimately be the pleading parties’ burden to prove that
they are entitled to the relief that they seek.
C. Conclusion
The Motion to Strike is DENIED.
II.
Application
to be Admitted Pro Hac Vice
Counsel Applicant seeks admission to appear
as counsel pro hac vice to represent Shirley Brown and Janet McCarthy in this action, and to be associated as
co-counsel with Justin Gordon.
Counsel Applicant is a member in good
standing of the State of Illinois. (Application, ¶ 2.)
Counsel Applicant has not appeared in the
last two years in any cases before California state courts or federal courts
located in California. (Application, ¶ 3.)
Counsel Applicant has provided proof that the
$50.00 fee required to be admitted pro hac vice has been paid to the
State Bar of California and that the State Bar has been served with the
Application. (Decl. Hui Tey, Exh. A.)
The Court GRANTS the
Application.