SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

Plaintiffs, Sayed Mahboob Nazimi, Ali Faqeerzada, and Maryum Faqeerzada (“Plaintiffs”), filed this action against Defendant Ethan Sweet (“Defendant”) for damages arising from an automobile incident, wherein Plaintiffs allege Defendant was driving under the influence.  

On July 6, 2023, Defendant filed his Answer to Plaintiffs’ Complaint. After having filed his Answer, Defendant now seeks leave to file a motion to strike portions of Plaintiff’s Complaint referring to punitive damages, because defense counsel was unaware Plaintiffs pled punitive damages at the time an Answer was filed on Defendant’s behalf.  

A motion to strike must be brought within the time allowed to respond to a pleading. (CCP § 435 (b)(1); California Rules of Court, Rule 3.1322, subd. (b).) The time for Defendant to file a motion to strike has since passed. Defendant cites to CCP §473(a)(1), which provides: 

 

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” 

Defense counsel declares she was unaware punitive damages were pled because she was out of town through July 7, 2023, and that it was excusable neglect and inadvertence because she was on vacation. Furthermore, defense counsel contends Plaintiff’s counsel did not respond to defense counsel’s request for an extension in time to file an Answer. 

First, Plaintiffs are under no obligation to grant Defendant an extension of time, nor does this negate the inference that defense counsel did not exercise due diligence by carefully reviewing Plaintiffs’ Complaint. 

Second, defense counsel going on vacation is not excusable neglect. Excusable neglect exists where counsel or the party acted as a reasonably prudent person would under the circumstances. (Hearn v. Howard  (2009) 177 Cal.App.4th 1193, 1206;  Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal. 4th 249, 258.) Attorneys’ negligence amounting to conduct falling below the standard of care in the profession is imputed to their clients, and does not constitute excusable neglect in support of relief under Code of Civil Procedure Section 473. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1415;  Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal. 4th 249, 258.)  

Third, Defendant will not be greatly prejudiced if he is not allowed to file a motion to strike after having already filed a responsive pleading. Just because Plaintiffs pled punitive damages does not mean Plaintiffs are entitled to such damages on this prayer for relief. Defendant has other means of countering Plaintiffs’ request for punitive damages and Plaintiffs allegations that Defendant was driving under the influence, such as on a motion for summary judgment. 

 

Based on the foregoing, the Court declines to exercise its discretion to contravene the time limitation set by statute. Defendant’s motion is DENIED. 

 

Moving party is ordered to give notice.   

 

 

Dated this 3rd day of October 2023