Judge: Michael Shultz, Case: 22CMCV00738, Date: 2023-08-08 Tentative Ruling
Case Number: 22CMCV00738 Hearing Date: October 17, 2023 Dept: A
22CMCV00738
Christopher S. Bennett v. NDEX West, LLC, Michael Barrett, James Frappier
[TENTATIVE]
ORDER GRANTING DEFENDANTS’ MOTION TO STRIKE THE SECOND AMENDED COMPLAINT
I.
BACKGROUND
The
complaint alleges that Plaintiff owned real property in Hawthorne, which
Defendants foreclosed upon, leaving a surplus of $82,918.81. Defendants refused
to allow Plaintiff’s claim for the surplus funds. Plaintiff alleges claims for
conversion and theft.
On
August 8, 2023, the Court denied Plaintiff’s Motion for Summary Judgment/Adjudication
and denied Plaintiff’s oral request to continue the hearing and for leave to
amend the complaint. On August 15, 2023, Plaintiff filed a First Amended
Complaint (“FAC”) without leave of court, deleting the claim for conversion and
adding claims for embezzlement of real property, fraud, statutes of fraud.
II. ARGUMENTS
Defendants argue that the FAC was improperly
without leave of court. Plaintiff did not make a motion to amend the pleading.
The parties have met and conferred without resolution.
Plaintiff argues that Defendants have
sidestepped the issue of whether Defendants committed fraud and other
white-collar crimes alleged. All the allegations are relevant to each claim. Defendants
will not suffer any prejudice.
Defendants did not file a reply brief by October
10, 2023 (five court days before the hearing). (Code Civ. Proc., § 1005 (b).) Defendants, however, did
file a reply brief on October 11, 2023, one day late.
III.
DISCUSSION
The court may, upon motion or at any time
in its discretion and upon terms it deems proper: (1) strike out any
irrelevant, false, or improper matter inserted in any pleading; or (2) strike
out all or any part of the pleading not drawn or filed in conformity with the
laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436 subd (a)-(b). Grounds for a motion to
strike are limited to matters that appear on the face of the complaint or on any matter of which the court shall
or may take judicial notice. (Code Civ. Proc., § 437).
Plaintiff may amend his pleading once
without leave of court before the answer, demurrer, or a motion to strike is
filed or by stipulation of the parties. (Code Civ. Proc., § 472 (a).) Defendants filed their answer on February 16,
2023. Therefore, Plaintiff is required to make a motion for an order permitting
leave to amend and the motion must comply with Cal Rules of Court, Rule 3.1324. (Code Civ. Proc., § 473 (a) (1).) Plaintiff filed the FAC without order of the
court, and therefore, it is not filed in conformity with California law.
IV.
CONCLUSION
Based on the foregoing, the Defendants’
Motion to Strike is GRANTED. The Court strikes the FAC filed on August 15,
2023.