Judge: Peter A. Hernandez, Case: 21PSCV00829, Date: 2022-08-11 Tentative Ruling

Case Number: 21PSCV00829    Hearing Date: August 11, 2022    Dept: O

Plaintiff Chang Shun Zhao’s Motion to Strike Answer of George Chen is GRANTED, with 20 days’ leave to amend.

Background   

Plaintiff Chang Shun Zhao (“Zhao”) alleges as follows:

Plaintiff is the owner of the property located at 11310 Frankmont Street in El Monte, California, 91732 (the “Residence”). On or about March 16, 2020, Plaintiff entered into one or more agreements with George Chen aka Chun Hsu Chen (“Chen”) and Great Chens Inc. (“GCI”) wherein Chen and GCI agreed to provide construction, renovation, and landscaping work on the Residence. Chen and GCI instead performed substandard and incomplete work, stole money that was prepaid to them, failed to pay subcontractors and abandoned personal property at the Residence.

On December 16, 2021, Plaintiff filed a First Amended Complaint (“FAC”), asserting causes of action against Chen, GCI, Hudson Insurance Company (“Hudson”) and Does 1-50 for:

1.                  Breach of Contract

2.                  Breach of the Covenant of Good Faith and Fair Dealing

3.                  Negligence

4.                  Trespass

5.                  Money had and Received

6.                  Unjust Enrichment

7.                  Contractor’s License Bond

On January 5, 2022, Hudson filed a cross-complaint, asserting a cause of action against Chen, GCI and Roes 1-100 for:

1.                  Declaratory Relief

A Case Management Conference is set for August 11, 2022.

Legal Standard

Pursuant to Code of Civil Procedure section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Discussion

Plaintiff moves the court for an order striking out Chen’s answer, on the basis that it is directed to Plaintiff’s original complaint, which is no longer operative, and not to the operative FAC.

Request for Judicial Notice

The court rules on Plaintiff’s Request for Judicial Notice (“RJN”) as follows: Granted as to Exhibit A (i.e., complaint filed October 12, 2021); Granted as to Exhibit B (i.e., FAC filed December 16, 2021) and Granted as to Exhibit C (i.e., answer filed March 22, 2022.)

Merits

Plaintiff represents that he amended the original complaint to amend the text in, inter alia, Paragraphs 3, 4, 8, 19, 25, 59, 61 and prayer 7, and that he also added a new Paragraph 21.

A review of Chen’s answer filed March 22, 2022 reveals that it is, in fact, directed to Plaintiff’s original complaint. For instance, Chen purports to respond to Paragraph 3 with the following response: “DENIED: GEORGE IS NOT SHAREHOLDERS OF GREAT CHENS;” however, the word “shareholder” is not contained in Paragraph 3 of the FAC (but is contained in Paragraph 3 of the original complaint). Similarly, Chen purports to respond to Paragraph 4 with the following response: “DENIED: GEORGE’S LICENSE # IS 766815;” however, George’s license number was already included in the FAC’s Paragraph 4, but was not included in the original complaint. Chen’s answer also fails to respond to the FAC’s new Paragraph 21. Chen also purports to respond to Paragraph 8 with the following response: “DENIED: HUDSON IS GEORGE’S BOND NOT GREAT CHENS;” however, Paragraph 8 of the FAC provides additional information relative to GCI’s and Chen’s bonds. Plaintiff also points out other instances where the answer fails to track the different paragraph numbering of the FAC on pages 4-5 of his motion.[1]

The motion, then, is granted, with 20 days’ leave given to Chen to file an answer directed to the FAC.