Judge Randy Rhodes, Case 22CHCV00451 2022-10-21 Tentative Ruling

Judge: Randy Rhodes, Case: 22CHCV00451, Date: 2022-10-21 Tentative Ruling

Case Number: 22CHCV00451 Hearing Date: October 21, 2022 Dept: F51

Dept. F-51

Date: 10-21-22 Trial Date: None Set. (CMC on 1-20-23)

Case # 22CHCV00451

MOTION TO STRIKE

Motion filed on 9/27/22.

MOVING PARTY: Defendant Roshanak Nasiri

RESPONDING PARTY: Plaintiff GH-Balboa 1998, L.P.

NOTICE: Ok.

RELIEF REQUESTED: Defendant Roshanak Nasiri dba Granada Hills Market (“Defendant Nasiri”) moves to strike the following averments from Plaintiff’s operative Complaint, filed on August 20, 2022, arguing such allegations are “irrelevant”: (1) Paragraph 6(d), “Rent was not increased during the time of the Coronavirus Pandemic; and rent was not collected after 6/30/2020.”; and (2) Paragraph 17(b), “Plaintiff has not pursued eviction until the expiration of any and all eviction moratoria, in place. More importantly, upon information and belief, Plaintiff alleges that Defendants are not entitled to any defenses based on COVID-19 protections as the defendants' leasehold was intended to expire on June 30, 2020. As of today's date, defendants cannot claim any entitlement to continue a leasehold that does not exist.”

RULING: Defendant Nasiri’s Motion to Strike is DENIED.

Factual Allegations of Operative Complaint:

GH-Balboa 1998, L.P. (“Plaintiff”) is the owner of the commercial real property located at 11116 Balboa Boulevard in Granada Hills, California (“Subject Property”). On approximately March 31, 2005, Plaintiff entered into an agreement with Roshanak Nasiri dba Granada Hills Market (“Defendant Nasiri”) and Mohamad Saklawi (collectively, “Defendants”), whereby Plaintiff agreed to lease the Subject Property to Defendants in exchange for Defendant’s monthly payment of rent. Plaintiff alleges Defendants commercial lease was set to expire on June 30, 2020. Plaintiff alleges, on approximately June 4, 2020, Plaintiff served Defendant with a “Courtesy Notice/Letter,” informing Defendants that Plaintiff would not renew the commercial lease upon the expiration date and, instead, intended to take back possession of the Subject Property. Plaintiff alleges that, despite such “Courtesy Notice/Letter,” Defendants remained in possession of the Subject Property following the expiration of the lease term. Given Defendants’ failure to voluntarily release possession of the Subject Premises to Plaintiff, Plaintiff was required to pursue eviction of Defendants. Plaintiff did not pursue eviction until after the expiration of the eviction moratorium, effective during the COVID-19 Pandemic. Plaintiff, additionally, did not increase rent during the COVID-19 Pandemic and did not collect rent from Defendants after June 30, 2020. Plaintiff alleges, on approximately May 13, 2022, Plaintiff served Defendants with a “30-Day Notice to Terminate Commercial Tenancy,” notifying Defendants that they must release possession of the Subject Premise within thirty (30) days. Plaintiff alleges Defendants have failed to release possession to Plaintiff. Plaintiff brings this unlawful detainer action, requesting forfeiture of the lease agreement, damages, and reasonable attorneys’ fees.

Legal 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” of that pleading. (Code Civ. Proc., § 435, subd. (b)(1).) “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 asserted 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.” (Code Civ. Proc., § 436.) “The grounds for a motion to strike shall 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, subd. (a).) “Where the motion to strike is based on matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, such matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.” (Code Civ. Proc., § 437, subd. (b).)

“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 435.5, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 435.5, subd. (a)(3).)

Meet and Confer:

The Court observes Defendant Nasiri has failed to comply with Code of Civil Procedure section 435.5, subdivision (a)(3) by filing a declaration which demonstrates Defendant’s fulfillment of the meet and confer obligation enumerated within Code of Civil Procedure section 435.5, subdivision (a). (Code Civ. Proc., § 435.5, subd. (a).) Defendant Nasiri’s Motion to Strike merely includes a Notice of Motion, and Memorandum of Points and Authorities, however, does not include a Declaration detailing Defendant’s meet and confer efforts. The Court is, therefore, required to conclude Defendant failed to meet and confer with Plaintiff prior to filing the present Motion to Strike, in compliance with Code of Civil Procedure section 435.5, subdivision (a). (Code Civ. Proc., § 435.5, subd. (a).)

Paragraphs 6(d) and 17(b) of Plaintiff’s Complaint:

Defendant Nasiri moves to strike the following allegations within Paragraphs 6(d) and 17(b) of Plaintiff’s operative Complaint, on the ground such allegations are “irrelevant” (Code Civ. Proc., § 437, subd. (a)): (1) Paragraph 6(d), “Rent was not increased during the time of the Coronavirus Pandemic; and rent was not collected after 6/30/2020.”; and (2) Paragraph 17(b), “Plaintiff has not pursued eviction until the expiration of any and all eviction moratoria, in place. More importantly, upon information and belief, Plaintiff alleges that Defendants are not entitled to any defenses based on COVID-19 protections as the defendants' leasehold was intended to expire on June 30, 2020. As of today's date, defendants cannot claim any entitlement to continue a leasehold that does not exist.”

An allegation within a pleading would be considered “irrelevant” if the allegation is “immaterial”. (Code Civ. Proc., § 431.10, subd. (c).) “An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense[;] (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense[;] (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Code Civ. Proc., § 431.10, subd. (b).) Conversely, an allegation would be considered a “material allegation” if the allegation “is one essential to the claim or defense” of the pleading. (Code Civ. Proc., § 431.10, subd. (a).)

Motions which seek to strike substantive defects from the face of the operative complaint should be used cautiously and sparingly. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683.) Motions to strike are not to be used as “a procedural ‘line item veto’ for the civil defendant.” (Ibid.)

The Court concludes the above-referenced averments included within Paragraphs 6(d) and 17(b) do not constitute fatally “irrelevant” allegations and, therefore, are not properly subject to Defendant Nasiri’s Motion to Strike. Despite Defendant Nasiri’s conclusory arguments (Mot., at p. 5:22-25 [“There is no need to include a sentence regarding whether rent was increased during the COVID-19 pandemic and claiming that rent was not collected after June 30, 2020. The sentence at issue is irrelevant and should be stricken.”]), the allegations included within Paragraphs 6(d) and 17(b) are indeed material to Plaintiff’s claims and causes of action. Plaintiff’s operative Complaint intends to establish that Defendant’s leasehold of the Subject Premises expired on June 30, 2020. Plaintiff’s allegation within Paragraph 6(d) is “material” to Plaintiff’s Complaint as, if Plaintiff collected rent from Defendants after the alleged expiration of the leasehold (i.e., after June 30, 2020), Defendant Nasiri may argue Plaintiff extended the leasehold following the alleged expiration by virtue of accepting rent from Defendants. Further, Plaintiff’s allegations within Paragraph 17(b) are doubly “material” to Plaintiff’s Complaint. Initially, Paragraph 17(b) is essential to demonstrate that Plaintiff’s effort to evict Defendants on May 13, 2022 was valid as such efforts took place following the expiration of all eviction moratoria in place due to the COVID-19 Pandemic. Additionally, Plaintiff’s allegations within Paragraph 17(b) are essential to thwart any representation that Defendants are entitled to any leasehold protections under the COVID-19 Pandemic regulations. In sum, Defendant Nasiri has failed to adequately demonstrate that Plaintiff’s allegations within Paragraphs 6(d) and 17(b) are sufficiently “irrelevant”.