Judge: Michael P. Linfield, Case: 23STCV25240, Date: 2024-03-21 Tentative Ruling

The Court often posts its tentative several days in advance of the hearing. Please re-check the tentative rulings the day before the hearing to be sure that the Court has not revised the ruling since the time it was posted.

Please call the clerk at (213) 633-0154 by 4:00 pm. the court day before the hearing if you wish to submit on the tentative.

Case Number: 23STCV25240    Hearing Date: March 21, 2024    Dept: 34

SUBJECT:        Motion to Strike First Amended Cross-Complaint

Moving Party: ASMS, LLC 

Resp. Party:    Sea Port Care Center, L.P.

The Motion is DENIED.

PRELIMINARY COMMENT:

        The Court wonders why ASMS’ counsel decided it was worth the time to file this motion.  Even assuming the Court had granted the motion to strike, it would not have changed this litigation one iota.  The three attorneys who are listed on the caption page of the motion have, collectively, been licensed as attorneys in the State of California for over 55 years.  Certainly, one of them should have realized that this motion is a waste of the Court’s time and their client’s money.

BACKGROUND:

On October 16, 2023, ASMS, LLC (“ASMS”) filed its Complaint against Sea Port Care Center, L.P. (“SPCC”) on causes of action of breach of contract, contractual indemnity, and money had and received.

On December 11, 2023, SPCC filed: (1) Answer to the Complaint; and (2) Cross-Complaint against ASMS.

On January 19, 2024, SPCC filed its First Amended Cross-Complaint (FACC).

On February 20, 2024, ASMS filed its Motion to Strike First Amended Cross-Complaint (“Motion”). In support of its Motion, ASMS concurrently filed: (1) Declaration of Todd W. Smith; (2) Request for Judicial Notice; and (3) Proposed Order.

On March 8, 2024, SPCC filed its Opposition to the Motion.

On March 14, 2024, ASMS filed its Reply in support of the Motion.

ANALYSIS:

I.          Request for Judicial Notice

ASMS requests that the Court take judicial notice of a variety of items, including filings in other trial court cases and demands for arbitration filed with the American Arbitration Association.

The Court DENIES as irrelevant judicial notice to these items. “Although a court may judicially notice a variety of matters (Evid. Code, § 450 et seq.), only relevant material may be noticed.” (Am. Cemwood Corp. v. Am. Home Assurance Co. (2001) 87 Cal.App.4th 431, 441, fn. 7, quotation omitted, italics in original.)

II.       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).)

III.     Discussion

ASMS moves the Court to strike the phrase “and outside therapy contracts, including with Express Therapy, Inc.” from paragraph 10 of the FACC. (Motion, p. 7:3–5.)

ASMS argues that this phrase should be stricken because: (1) it cannot support an indemnity claim on behalf of SPCC because the FACC does not allege facts showing SPCC suffered any indemnifiable loss associated with the therapy contract into which ASMS entered with Express Therapy; and (2) the issues with Express Therapy’s therapy contracts are already being litigated in multiple fora, which would make it inefficient and improper to allow such allegations to be the subject of discovery and trial in this action. (Motion, pp. 5:22–26, 6:15–22, 6:28, 7:1.)

The Court disagrees with ASMS’s arguments.

        SPCC is allowed to make such an allegation in its pleading. The Court has not been presented with a judgment in any other matter that would indicate the truth of this allegation has already been adjudicated. Thus, there is nothing irrelevant, false, or improper about making the allegation at issue.

Moreover, merely making this allegation does not affect the substantial rights of ASMS.

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

The Court does not and need not address at this time any other issues that are not properly before the Court.

IV.      Conclusion

The Motion is DENIED.