Judge: Peter A. Hernandez, Case: 24STCV14086, Date: 2024-12-10 Tentative Ruling
Case Number: 24STCV14086 Hearing Date: December 10, 2024 Dept: 34
Defendants Marisela Nuno and The Nuno Residence, LLC’s Motion
to Strike Plaintiff Concepcion Georgina Barbayanes Tavizon’s Complaint is
GRANTED.
Background
On June 5, 2024, Plaintiff Concepcion Georgina Barbayanes Tavizon
(“Plaintiff”) filed a complaint against Defendants Marisela Nuno, The Nuno
Residence, LLC, Hillfoot, LLC, and Does 1-50 arising from the transaction of
real property located at 2215 S. Harvard Boulevard, Los Angeles, CA 90018 alleging
causes of action for:
1.
Breach
of Written Contract;
2.
Common
Count – Account Stated;
3.
Money
Lent;
4.
Foreclosure
of Deed of Trust; and
5.
Fraud
in the Inducement.
On October 10, 2024, Plaintiff filed a Notice of Errata to Plaintiff’s
Complaint.
On October 16, 2024, Defendants Marisela
Nuno and The Nuno Residence, LLC (“Moving Defendants”) filed this Motion to
Strike. On November 22, 2024, Plaintiff filed an opposition to Moving Defendants’
motion. No reply has been filed.
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
Moving Defendants seeks to strike the
fifth cause of action for fraud in the inducement from Plaintiff’s cover page
in her complaint arguing that Plaintiff failed to allege this cause of action
in the body of the complaint. (Motion, at p. 4.) As such, Moving Defendants
argue that the language in the complaint’s cover page is irrelevant, false, and
improper subject to strike. (Ibid.) Moving Defendants also argue that Plaintiff
cannot correct its complaint by merely filing a Notice of Errata as the error
creates ambiguity regarding which claims Moving Defendants needs to contest. (Id.,
at p. 5.) Moving Defendants contend that this motion was filed to avoid threats
of default from Plaintiff for Defendants’ failure to respond to the complaint.
(Ibid.)
In
opposition, Plaintiff concedes that the inclusion of her fifth cause of action
for fraud in the inducement in the complaint’s caption was an error as it was
not included or pled in the body of the complaint. (Opp., at p. 2.) However,
Plaintiff argues that the mistake was corrected by serving the Notice of Errata
on Defendants. (Ibid.) Plaintiff contends that once the correction was
made, it acted as if the caption no longer listed fraud in the inducement as a
cause of action making Moving Defendants’ motion moot. (Ibid.)
Moving
Defendants have not filed a reply.
The
court finds that since Plaintiff did not plead her fraud in the inducement in
the body of the complaint, the language in the caption is subject to strike. Plaintiff
does not provide any authority supporting her argument that her Notice of
Errata moots Moving Defendants’ motion. As such, Moving Defendants’ motion is
granted. The court orders that Plaintiff file an amended complaint that
incorporates the changes listed in her Notice of Errata.
Conclusion
Defendants Marisela Nuno and The Nuno Residence, LLC’s Motion to Strike
Plaintiff Concepcion Georgina Barbayanes Tavizon’s Complaint is GRANTED.