Judge: Michelle C. Kim, Case: 22STCV14819, Date: 2024-03-27 Tentative Ruling
Case Number: 22STCV14819 Hearing Date: March 27, 2024 Dept: 31
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
ASHLEY AGUILAR, Plaintiff(s), vs.
DENNY'S INC., ET AL.,
Defendant(s). | ) ) ) ) ) ) ) ) ) ) ) ) | CASE NO: 22STCV14819
[TENTATIVE] ORDER RE: (1) DEMURRER TO CROSS-COMPLAINT, and (2) ADVANCING MOTION TO STRIKE
Dept. 31 1:30 p.m. March 27, 2024 |
I. BACKGROUND
A. Timeline of Events
Plaintiff Ashley Aguilar (“Plaintiff”) filed this action against defendants Does 1 to 251 for injuries arising from a trip and fall on a pothole in a parking lot. Plaintiff filed amendments to complaint naming Denshaz, Inc. (“Denshaz”) as Doe 1, MJH, LLC as Doe 2, Benjamin Hops as Doe 3, Goodrich And Hops Properties West as Doe 4, Benjamin Hops50 as Doe 5, Frieda Investments, LLC as Doe 6.
On April 26, 2023, Denshaz filed its Answer and a cross-complaint against Goodrich and Hops Properties West, and Roes 1 to 20. On May 17, 2023, Denshaz filed amendments to cross-complaint naming MJH, LLC as Roe 1, and Benjamin Hops50 (“BH50”) as Roe 2.
On July 17, 2023, BH50 filed its Answer to Denshaz’s cross-complaint.
On December 13, 2023, BH50 and MJH, LLC, jointly, filed their cross-complaint against Denshaz and Roes 1 to 20.
On January 12, 2024, BH50 filed an amended cross-complaint against Denshaz.
B. Parties’ Arguments
Denshaz now demurs to BH50’s cross-complaint on the grounds that it is untimely, because BH50 failed to file its mandatory cross-complaint against Denshaz at the time BH50 filed an Answer to Denshaz’s cross-complaint, and did not seek leave to amend the cross-complaint.
BH50 filed an untimely opposition to the demurrer, and did not oppose the motion to strike. BH50 requests leave to file a cross-complaint.
In reply, Denshaz reiterates that BH50 waived its cross-claim when it failed to do so on July 17, 2023, at the time BH50 answered the cross-complaint brought by Denshaz. Denshaz filed a separate motion to strike on the same grounds, but that it is set to be heard the day after. Because the demurrer and motion to strike involve the same issues, the Court finds it in the interests of judicial economy to advance the motion to strike to be heard simultaneously with the demurrer.
The motion to strike, set to be heard on May 28, 2024, is hereby advanced to May 27, 2024 to be heard at the same time as the demurrer.
C. Request for Judicial Notice
Denshaz requests the Court take judicial notice of (1) Plaintiff’s complaint, (2) Plaintiff’s Amendment to Complaint naming BH50 as Doe 5, (3) Denshaz’s cross-complaint filed on April 26, 2023, (4) Denshaz’s amendment to cross-complaint naming BH50 as Roe 2, (5) BH50’s Answer to Denshaz’s cross-complaint filed on July 17, 2023, and (6) the Court’s July 19, 2023 Order continuing trial and the FSC.
The requests are granted. (Cal. Evid. Code §452(d).)
II. DISCUSSION
A cross-complaint against any of the parties who filed the initial complaint or cross-complaint against the cross-complainant must be filed before or at the same time as the answer to the initial complaint or cross-complaint, which answer must be filed within 30 days of service of the complaint or cross-complaint. (CCP §§ 412.20(a)(3), 428.50(a), 432.10.) If a party fails to file a cross-complaint within the time limits described above, he or she must obtain permission from the court to file the cross-complaint. (CCP §§ 426.50, 428.50(c).) Here, Denshaz was the party that initially filed a cross-complaint against BH50. Therefore, any cross-complaint by BH50 against Denshaz thereafter is a mandatory cross-claim to be brought before or at the same time of its Answer to the cross-complaint. At the time BH50 filed its Answer on July 17, 2023 to Denshaz’s cross-complaint, BH50 did not file its cross-complaint. Rather, BH50 filed its cross-complaint against Denshaz five months later on December 13, 2023, without leave of the Court. BH50 then filed an amended cross-complaint against Denshaz on January 12, 2024, also without leave.
California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (CCP §§ 435; 436(a).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (CCP § 436.) Neither of BH50’s cross-complaints filed on December 13, 2023 and January 12, 2024 appear to be proper on its face. However, the Court notes that although Denshaz’s moving papers appears to acknowledge this defect with the original cross-complaint, Denshaz specifically moves to strike only the amended cross-complaint in the Notice. The Court is unable to determine the rationale for this. Further confusing the matter is BH50’s counsel’s declaration, which does not mention the December 13, 2023 filing, and makes it seem as if January 12, 2024 was the first time BH50 had filed its cross-complaint against Denshaz. The Court requests the parties to brief the Court on this issue at the hearing. Lastly, the Court denies BH50’s conclusory request to allow the late filing of its cross-complaint in its untimely opposition. BH50 may bring a separately noticed motion for leave.
III. CONCLUSION
The motion to strike the amended cross-complaint filed by BH50 on January 12, 2024 is GRANTED. The demurrer on the same grounds is moot. In terms of whether the December 13, 2023 cross-complaint filed by BH50 will also stricken, the Court will adjust this ruling accordingly at the hearing on this motion.
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 March 2024
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| Hon. Michelle C. Kim Judge of the Superior Court
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