Judge: Monica Bachner, Case: 21STCV15143, Date: 2023-02-16 Tentative Ruling

Case Number: 21STCV15143    Hearing Date: February 16, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Val Serebryany’s unopposed motion to strike Plaintiff Impact Solutions, LLP’s third and fourth causes of action (¶¶30-34 and ¶¶35-39) to its first amended complaint is granted. 

Defendant Val Serebryany (“Serebryany”) (“Defendant”) moves unopposed to strike Plaintiff Impact Solutions LLP’s (“Impact Solutions”) 3rd and 4th causes of action to Plaintiff’s first amended complaint (“FAC”) on the grounds that they exceed the scope of the Court’s granting of leave to amend.  (Notice of Motion, pgs. 1-2; C.C.P. §§435, 436, 437.)

Defendant Serebryany filed the instant motion on July 21, 2022.  Defendants Clyde Turner (“Turner”) and Alfred Luciani (“Luciani”) filed their joinder to Defendant Serebryany’s motion on July 26, 2022.  Defendant Serebryany filed his notice of Non-opposition on February 8, 2023.

Meet and Confer

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.  (C.C.P. §435.5(a).)

Defendant Serebryany’s counsel submitted an affidavit indicating she emailed Plaintiff’s counsel on July 7, 2022, in an effort to meet and confer regarding the instant motion to which Plaintiff’s counsel responded that he would take a look at the FAC and get back to her shortly.  (Decl. of Dolukhanyan ¶7.)  Defendant Serebryany’s counsel declares she followed up twice, on July 18, 2022, and again on July 19, 2022, with Plaintiff’s counsel after not hearing from him, and he failed to respond to Plaintiff’s meet and confer efforts.  (Decl. of Dolukhanyan ¶¶8-9.)  Defendant’s counsel’s affidavit sufficient demonstrates a good faith effort to meet and confer.  (C.C.P. §435.5(a).)

Motion to Strike

C.C.P. §436 provides that the Court may, upon a motion made pursuant to C.C.P. §435, or at any time within its discretion and upon terms it deems proper, “strike out any irrelevant, false, or improper matter inserted in any pleading” and/or “strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”  A motion to strike should be applied cautiously and sparingly because it is used to strike substantive defects.  (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.)  The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice.  (C.C.P. §437.) 

“A court is not required to tolerate purported amended complaint that fails to amend previous pleading, is not filed in good faith, is filed in disregard of established procedural requirements, or is otherwise violative or orderly judicial administration.”  (Tostevin v. Douglas (1958) 160 Cal.App.2d 321, 331, quoting Neal v. Bank of America National Trust & Savings Association (1949) 93 Cal.App.2d 678, 682-683.)  A motion to strike is properly granted where a plaintiff continues to plead the same allegations to which prior demurrers have been sustained, without attempt to cure.  (Kronsberg v. Wershow (1965) 238 Cal.App.2d 170, 172-173; Taliaferro v. Prettner (1955) 135 Cal.App.2d 157, 159.)

Defendant Serebryany moves to strike on the basis Plaintiff’s FAC ¶¶30-34 and ¶¶35-39 exceed the scope of this Court’s granting of leave to amend.  (Motion, pgs. 7-8.)

The original Complaint contained fourteen causes of action, including the 3rd and 4th causes of action for Violation of Securities Laws Act of 1933 and 1934. The Complaint was challenged by demurrers. On June 1, 2022, this Court heard the matter and sustained 3rd and 4th causes of action without leave to amend. Accordingly, 3rd and 4th causes of action are improperly pled in violation of this Court’s order and must be stricken.  (6/1/22 Ruling; C.C.P. §436(b).)

Accordingly, Defendant Serebryany’s unopposed motion to strike Plaintiff’s 3rd and 4th causes of action (¶¶30-34 and ¶¶35-39) of Plaintiff’s FAC is granted. 

Dated:  February ____, 2023

Hon. Monica Bachner

Judge of the Superior Court