Judge: Randy Rhodes, Case: 20CHCP00146, Date: 2022-11-14 Tentative Ruling

Case Number: 20CHCP00146    Hearing Date: November 14, 2022    Dept: F51

Dept. F-51 

Date: 11/14/22

Case #20CHCP00146

MOTION TO STRIKE 

Motion filed on 10/12/22.

MOVING PARTIES: Defendants Ron Hacker, aka Ronen Hacker; BAG Fund, LLC; and Intellectual Capital Management & Servicer, Inc. (collectively, “Defendants”)

RESPONDING PARTY: Plaintiff Larion Krayzman (“Plaintiff”)

NOTICE: ok 

RELIEF REQUESTED: An order striking Plaintiff’s entire Second Amended Complaint and dismissing the entire action with prejudice.

TENTATIVE RULING: The order is denied.

RELEVANT BACKGROUND:

On June 18, 2020, Plaintiff filed his original complaint against nine named defendants, seeking to set aside allegedly fraudulent transfers made to avoid satisfying a judgment in a previous action[1] where a jury awarded Plaintiff a total of $126,000 against defendant L&J Assets, LLC.

On April 27, 2022 and May 3, 2022, the Court sustained two demurrers against defendants Lana Smith and Intellectual Capital Management & Servicer, Inc., respectively, with leave to amend.

On May 26, 2022, Plaintiff filed his first amended complaint (“FAC”).

On August 9, 2022, the Court sustained defendant Tanya Bogorad’s demurrer to Plaintiff’s FAC with 20 days leave to amend. Plaintiff was served by email and mail on August 10, 2022.

On September 30, 2022, Plaintiff filed his second amended complaint (“SAC”) against the moving defendants.

On October 12, 2022, Defendants filed the instant motion. Plaintiff has not filed an opposition.

ANALYSIS

Before filing a motion to strike, moving party's counsel must meet and confer, in person or by telephone, with counsel for the party who filed the pleading in an attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing a motion to strike. (Code Civ. Proc. § 435.5.) Here, Defendants do not describe any attempts they made to meet and confer with Plaintiff prior to filing the instant motion. Therefore, the meet-and-confer requirement of Code of Civil Procedure section 435.5 has not been met.

The grounds for a motion to strike are that the pleading either (1) has irrelevant, false or improper matter; or (2) has not been drawn or filed in conformity with laws, court rules, or court orders. (Code Civ. Proc., § 436.) The court may also dismiss the complaint when, “after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” (Code Civ. Proc., § 581, subd. (f)(2).)

Defendants obeserve that Plaintiff failed to amend his pleading within the 20-day deadline set by the Court in its August 9, 2022 ruling. The deadline for Plaintiff to file the SAC was 20 days from August 10, 2022, the date the order was served on Plaintiff, plus either two court days (for service by email) or five calendar days (for service by mail), making the September 6, 2022 the last possible date for Plaintiff to file his SAC. (Code Civ. Proc. §§ 1010.6, subd. (a)(4); 1013.) Here, Plaintiff filed his SAC on September 30, 2022. Therefore, the Court has discretion under Code of Civil Procedure section 436 to strike the pleading in its entirety for violating its August 9, 2022 order. The Court also has discretion to dismiss the entire action, for the same reasons set forth above, under Code of Civil Procedure section 581, subdivision (f)(2).

Defendants further argue that Plaintiff’s SAC is substantively identical to the defective FAC against which the Court sustained defendant Bogorad’s demurrer. (Defs.’ Mem. of P. & A., 3:15–18.) To the extent the motion to strike constitutes a challenge to the adequacy of the pled causes of action, the Court declines to turn the subject motion into the functional equivalent of a demurrer. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682–1683 [While a demurrer is not the exclusive means to challenge a cause of action, a motion to strike generally applies to parts of a cause of action, claim for damages, or where the cause of action or primary right is barred as a matter of law.]; Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281 [“Where a whole cause of action is the proper subject of a pleading challenge, the court should sustain a demurrer to the cause of action rather than grant a motion to strike”].) The Court declines to consider the validity of Defendants’ argument in the subject motion to strike, as it constitutes an argument over the substantive quality of the SAC rather than demonstrating an actual legal bar to the action.

The procedural defects set forth above do not necessarily defeat the entire action, as the Court retains discretion to grant such motions. Under Civil Code section 3528, “the law respects form less than substance.” Additionally, the public policy of California favors adjudicating cases on the merits (Elston v. City of Turlock (1985) 38 Cal.3d 227, 235; Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.) Here, Plaintiff, a self-represented litigant, filed his action relatively recently, and Defendants have not alleged any prejudice resulting from Plaintiff’s late filing. The Court thus exercises its discretion, under Rule 3.110 of the California Rules of Court, to excuse the untimely filed SAC.

Accordingly, Defendants’ motion to strike Plaintiff’s SAC in its entirety and dismiss the entire action is DENIED.