Superior Court of California 

County of Los Angeles 

Department 78 

¿ 

 

I. BACKGROUND 

Plaintiff Isaiah Mcgrath, by and through his Guardian Ad Litem, Gloria Johnson, (“Plaintiff”) filed this action against Los Angeles Unified School District, New Designs Charter School, and Does 1 to 50 for damages arising from a slip and fall at Plaintiff’s school located at 1342 W Adams Blvd, Los Angeles, CA 90007. The complaint sets forth two causes of action for general negligence and premises liability. Defendant Los Angeles Unified School District has been dismissed from the action. 

Defendant New Designs Charter School (“Defendant”) now moves to strike the prayer for “Other damage: Incidental damages. Other damages are unknown at this time which Plaintiff will prove at trial. Loss of society, love, protection, companionship, consortium, and other related injuries and damages.” 

Any opposition was due on or before September 23, 2024. No opposition has been filed to date. 

 

II. PROCEDURAL REQUIREMENT 

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).)¿ 

Counsel declares she spoke with Plaintiff’s counsel on June 20, 2024 on the issue. (Harada-Orosz Decl. ¶ 7.) As of the filing of the motion, Plaintiff’s counsel has not agreed to amend the complaint or dismiss the incidental and consortium damages. (Id. ¶ 10.)  

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

 

III. DISCUSSION 

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).) 

Defendant contends incidental damages are not supported for this slip and fall case, because incidental damages are damages resulting from the seller’s breach. Additionally, Defendant argues the loss of consortium damage is improper, because Plaintiff is a minor and there was injury to no other person except for minor Plaintiff. 

Indeed, this slip and fall case does not involve a breach of contract for incidental damages to be applicable. Further, Plaintiff is the only plaintiff to this action. There is no other plaintiff alleging to have a valid and lawful marriage with minor Plaintiff at the time of injury for there to be a derivative claim for loss of consortium. (LeFiell Mfg. Co. v. Superior Court (2012) 55 Cal.4th 275, 284-285.) Furthermore, Plaintiff did not oppose the motion. A failure to oppose a motion may be deemed a consent to the granting of the motion. (CRC, rule 8.54(c).) 

 

IV. CONCLUSION 

Because Plaintiff did not oppose the motion, Plaintiff necessarily fails to meet his burden to show in what manner the complaint can be amended to change the legal effect of the pleading due to the lack of opposition. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) 

Therefore, Defendant’s motion to strike Plaintiff’s complaint is GRANTED without leave to amend. 

 

Moving Party is ordered to give notice. 

 

DATED: October 4, 2024 

__________________________ 

Hon. Michelle C. Kim 

Judge of the Superior Court 

 

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 SMCDEPT78@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.