Judge: Michelle Williams Court, Case: 21STCV36389, Date: 2022-09-16 Tentative Ruling

Case Number: 21STCV36389    Hearing Date: September 16, 2022    Dept: 74

21STCV36389           SWAMP CAPITAL vs GINGER GREEN INC

Plaintiff’s Motion to Strike the Entire Cross-Complaint

TENTATIVE RULING: The motion is GRANTED without prejudice. The cross-complaint filed on May 19, 2022 is stricken as untimely.

Background

On October 1, 2021, Plaintiff Swamp Capital, LLC filed this action against Defendants Ginger Green Inc., Jerrold Lee, Harry Hae Chun-Lee, and Owen Kim, which arises out of allegations that Defendants breached the parties’ lease agreement for real property located at 3616 Noakes Street, Boyle Heights, CA 90023.

On February 9, 2022, Plaintiff filed the First Amended Complaint asserting causes of action for: (1) breach of contract; (2) quiet title: (3) fraud; and (4) declaratory relief.

On May 3, 2022, the Court issued an order overruling Defendants’ demurrer to the FAC and granted Defendants 15 days to file an answer.

On May 18, 2022, Defendants filed their answer and on May 19, 2022, Ginger Green, Inc. filed a cross-complaint against Swamp Capital and Ali Shekarchian asserting causes of action for: (1) fraud intentional misrepresentation; (2) fraud false promise; (3) negligent misrepresentation; (4) civil conspiracy; (5) violation of Business and Professions Code Section 17200; and (6) declaratory relief.

Motion

On June 10, 2022, Plaintiff Swamp Capital filed the instant motion to strike the entire cross-complaint as untimely.

Opposition

In opposition, Defendant notes Plaintiff did not meet and confer and Defendant has now filed a motion for leave to file a cross-complaint, rendering the motion moot.

Reply

In reply, Plaintiff argues Defendant concedes the cross-complaint is untimely and the motion is not moot merely by the filing of a motion for leave to amend. 

Plaintiff Failed to Meet and Confer

Pursuant to Code of Civil Procedure section 435.5, a motion to strike must be accompanied by a meet and confer declaration. Plaintiff’s motion failed to comply with this requirement.

While “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike,” (Code Civ. Proc. § 435.5(a)(4)), the Court expects Plaintiff to comply with the requirements of the Code of Civil Procedure in all future submissions.

Motion to Strike

Standard

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc. § 435(b)(1); Cal. Rules of Court, rule 3.1322(b).) The court may, upon a 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 any 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(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

The Cross-Complaint is Untimely

Pursuant to Code of Civil Procedure section 428.50(a), “[a] party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint.” If a party fails to do so, they must obtain leave of court. (Code Civ. Proc. § 428.50(c). See also Glogau v. Hagan (1951) 107 Cal.App.2d 313, 320 (“A defendant may file a cross-complaint at the time of answering. But if he seeks to file it at a later time he may do so only by permission of the court.”).)

The cross-complaint was filed one day after the answer. Therefore, it was untimely filed without leave of court and not “filed in conformity with the laws of this state.” (Code Civ. Proc. § 436(b).) As such, it is properly stricken. (See e.g. Loney v. Superior Court (1984) 160 Cal.App.3d 719, 724 (“we conclude that the cross-complaint of petitioners was properly stricken because leave of court was not obtained prior to its being filed.”).) The Court shall consider Defendant’s motion for leave to file a cross-complaint on the noticed date