Judge: Michelle C. Kim, Case: 21STCV17331, Date: 2023-10-02 Tentative Ruling


Case Number: 21STCV17331    Hearing Date: February 27, 2024    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

JASON GRAY, by and through his Guardian ad Litem, GREGORY GRAY, 

Plaintiff(s),  

vs. 

 

CITY OF RANCHO PALOS VERDES, ET AL., 

 

Defendant(s). 

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      CASE NO: 21STCV17331 

 

[TENTATIVE] ORDER RE: MOTION TO STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT 

 

Dept. 31 

1:30 p.m.  

February 27, 2024 

 

I. Background 

On October 6, 2023, plaintiff Jason Gray, by and through his Guardian ad Litem, Gregory Gray (“Plaintiff”) filed his First Amended Complaint (“FAC”) action against Defendants City of Rancho Palos Verdes, City of Rolling Hills Estates, Palos Verdes Peninsula Unified School District, and Does 2 through 50 for injuries caused by a sidewalk that allegedly ejected Plaintiff from his bicycle.   

On December 19, 2023, the Court granted Palos Verdes Peninsula Unified School District’s demurrer to the FAC without leave to amend, on the grounds that Plaintiff failed to timely present a government tort claim.  

On January 4, 2024, defendant City of Rolling Hills Estates (“City”) filed a motion to strike the FAC. Thereafter, on January 24, 2024, the parties stipulated to strike the ¶¶15-23 and Exhibits F, G, and H of the FAC without the need for judicial intervention. Therefore, the remaining portions at identified in the moving papers are ¶¶10-14 and Exhibits C and E of the FAC. The Court appreciates the parties’ mutual efforts in narrowing the scope of the motion. 

Plaintiff opposes the motion, and the City filed a reply.   

 

 

II. Legal Standard 

  1. Procedural 

Before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion to strike and file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 435.5(a).) 

The Court finds the City has fulfilled this requirement prior to filing the motion.  

 

  1. Motion To Strike 

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)   

An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.) 

 

The City seeks to strike the following from Plaintiff’s FAC, on the grounds that the allegations are non-essential and irrelevant: 

 

“10. On November 10, 2020, the adjusting company for Defendant CITY OF ROLLING HILLS ESTATES, Carl Warren & Company, sent a letter to Plaintiff’s counsel rejecting his claim on the grounds that the location of the incident was owned and controlled by an entity other than Defendant CITY OF ROLLING HILLS ESTATES. Attached as Exhibit C is a copy of the Rejection Notice from City of Rolling Hills Estates, sent on November 10, 2020. 

 

11. Similarly, on December 1, 2020, Defendant CITY OF RANCHO PALOS VERDES claims examiner at Carl Warren & Company, Mel Zapf, sent Plaintiff’s counsel an email correspondence stating that, following an investigation on the matter, it had been determined that Defendant CITY OF RANCHO PALOS VERDES did not control the location where the loss occurred. Nothing in this correspondence pointed to the sidewalk being under the control, ownership, and/or possession of PALOS VERDES PENINSULA UNIFIED SCHOOL DISTRICT, nor of any other public entity. 

 

12. Accordingly, on December 16, 2020, Plaintiff’s counsel received a formal letter advising of Defendant CITY OF RANCHO PALOS VERDES’ rejection of the claim, without any further explanation. Attached as Exhibit D is a copy of the Rejection Notice from City of Rancho Palos Verdes, sent on December 16, 2020. 

 

13. Thereafter, on February 22, 2021, Plaintiff’s counsel initiated a telephone conversation 

with Ms. Zapf, in which it was revealed that after further review of the claim, there appeared to have been a shift in the boundary line that took place years prior, with Defendant CITY OF RANCHO PALOS VERDES holding ownership of the location’s right of way. 

 

14. Then, on October 29, 2021, Defendant CITY OF RANCHO PALOS VERDES sent Plaintiff’s counsel a letter reaffirming Ms. Zapf’s jurisdictional representations that it did not own, control or maintain the incident location. The letter further stated that, per Defendant CITY OF RANCHO PALOS VERDES’ information, the subject location was actually within the jurisdiction of Defendant CITY OF ROLLING HILLS ESTATES, and therefore, that Defendant CITY OF ROLLING HILLS ESTATES was in charge of maintenance, inspection, and repair of the sidewalk where the incident occurred, despite Defendant CITY OF ROLLING HILLS ESTATES’ denial thereof. Attached as Exhibit E is a copy of the Letter from Attorney Mildred Lima on behalf of City of Rancho Palos Verdes, dated October 29, 2021.” 

 

(FAC ¶¶ 10-14.) 

 

 

Here, Plaintiff sets forth a cause of action against the remaining public entity defendants for negligence premised on dangerous condition of public property. Pursuant to Gov. Code § 835, a public entity is liable for injury caused by a dangerous condition of its property. Although the amount of in-depth detail in the preceding paragraphs are not particularly necessary, the Court finds that the allegations taken as a whole are essential to laying the foundation on the issue of claim of ownership, control, and maintenance over the sidewalk. [Ferraro v. Camarlinghi (2008)  161 Cal.App.4th 509, 528 (quoting Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281 ["'Matter that is essential to a cause of action should not be struck and it is error to do so.'"; see also Cal. Farm & Fruit Co. v. Schiappa-Pietra (1907) 151 Cal. 732, 745, superseded by statute on other grounds as stated in Resure, Inc. v. Sup. Ct. (1996) 42 Cal. App. 4th 156, 165 [A court erred in striking from a complaint allegations material to lay foundation for the relief, even though not essential to the claim.].)  

Additionally, as to the City’s contention that the allegations are hearsay, the grounds for a motion to strike must appear on the face of the pleading. At the pleading stage, hearsay is not implicated, because the purpose of a motion to strike is not the truth of the matters asserted. (Clauson v. Sup. Ct. (1998) 67 Cal. App. 4th 1253, 1255 [“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”] Lastly, the Court finds no “significant prejudice” to the City, especially when the parties had significantly narrowed the scope of the motion after its filing by way of stipulation. In terms of the City’s motion to strike Exhibits C and E of the FAC, the Court notes that the operative FAC filed on October 6, 2023 does not contain any of the referenced exhibits. Therefore, this issue of striking exhibits is moot.   

 

Based on the foregoing, the motion for strike is DENIED.  

 

Moving party is ordered to give notice.   

 

PLEASE TAKE NOTICE: 

  • Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

  • If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿ 

  • Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ 

  • If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿ 

 

Dated this 26th day of February 2024 

 

  

 

 

Hon. Michelle C. Kim 

Judge of the Superior Court