Judge: Randy Rhodes, Case: 22CHCV00840, Date: 2023-03-13 Tentative Ruling
Case Number: 22CHCV00840 Hearing Date: March 13, 2023 Dept: F51
Dept. F-51¿
Date: 3/13/23
Case #22CHCV00840
¿
MOTION TO STRIKE
Motion Filed: 1/20/23
MOVING PARTY: Plaintiff Aric Cho, in pro per (“Plaintiff”)
RESPONDING PARTY: Defendant Town Ridge Homes
Association (“Defendant”)
NOTICE: No notice, no proof of service
RELIEF REQUESTED: Plaintiff moves to strike
Defendant’s 11/29/22 demurrer.
TENTATIVE RULING: The motion is denied.
I.
BACKGROUND
Plaintiff alleges that he was
injured as a result of a dangerous condition on property associated with Defendant,
a homeowners association.
On 10/11/22, Plaintiff filed his
complaint, alleging against Defendant the sole cause of action for dangerous
condition on property. On 11/29/22, Defendant filed its demurrer, which the
Court sustained on 1/18/23 with leave to amend. On 1/18/23, Plaintiff filed his
first amended complaint (“FAC”),
On 1/20/23, Plaintiff filed the
instant motion. On 2/6/23 and 3/6/23, Defendant filed oppositions thereto. No
reply has been filed to date.
II.
ANALYSIS
The court may, upon a motion, or at
any time in its discretion, and upon terms it deems proper, strike any
irrelevant, false, or improper matter inserted in any pleading, including a
demurrer. (Code Civ. Proc., §§
436, subd. (a); 435, subd. (a)(2).) The court may also strike 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. (Id., § 436, subd. (b).) The
grounds for moving to strike must appear on the face of the pleading or by way
of judicial notice. (Id., § 437.)
Here, Plaintiff’s motion is both
procedurally and substantively deficient, as set forth below.
Service
“All moving and supporting papers
shall be served and filed at least 16 court days before the hearing.” (Code
Civ. Proc. 1005, subd. (b).) “Whenever a document is required to be served on a
party, the service must be made on the party's attorney if the party is
represented.” (Cal. Rules of Ct., rule 1.21, subd. (a).) “A requirement to ‘serve
and file’ a document means that a copy of the document must be served on the
attorney for each party separately represented, … and that the document and a
proof of service of the document must be filed with the court.” (Id.,
subd. (b).) A proof of service must contain “a declaration stating that service
has been made as provided in (a) and (b).” (Id., subd. (c).)
Here, Plaintiff has not filed a
proof of service showing that the instant motion was served on Defendant.
Meet and Confer
“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 required to meet and confer at least
five days before the date a motion to strike must be filed, otherwise the
moving party is granted a 30-day extension to file the motion. (Ibid.)
Here, Plaintiff has made no showing
that he attempted to meet and confer with Defendant’s counsel prior to filing
the motion to strike.
Motion to Strike
The Court observes that Plaintiff
filed the instant motion two days after the Court heard and ruled on Defendant’s
demurrer. To the extent that Plaintiff seeks to strike the demurrer, his motion
is therefore moot. To the extent that Plaintiff seeks to move the Court to
reconsider its 1/18/23 order sustaining Defendant’s demurrer with leave to
amend, the motion is denied for reasons set forth below.
Reconsideration
“When an application for an order
has been made to a judge, or to a court, and refused in whole or in part, or
granted, or granted conditionally, or on terms, any party affected by the order
may, within 10 days after service upon the party of written notice of entry of
the order and based upon new or different facts, circumstances, or law, make
application to the same judge or court that made the order, to reconsider the
matter and modify, amend, or revoke the prior order. The party making the
application shall state by affidavit what application was made before, when and
to what judge, what order or decisions were made, and what new or different
facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc. § 1008, subd. (a).)
Here, Plaintiff was served with a notice of the Court’s
ruling by both mail and email on 1/18/23. Therefore, the instant motion is
timely. However, Plaintiff has made no statement, by affidavit or otherwise,
showing “new or different facts, circumstances, or law.” (Ibid.)
Accordingly, to the extent Plaintiff seeks to utilize the instant motion to
strike as a motion for reconsideration under Code of Civil Procedure section
1008, subdivision (a), the motion is denied.
CONCLUSION
The motion is denied.