Judge Richard Y. Lee, Case 30-2022-01242363 2022-10-13 Tentative Ruling

Judge: Richard Y. Lee, Case: 30-2022-01242363, Date: 2022-10-13 Tentative Ruling

Defendant Monarch Home Maintenance & Inspection (“Monarch”) filed a Motion to Strike Portions of the Complaint, or in the alternative, Motion to Stay Proceedings Pending Arbitration.

MOTION TO STRIKE

Monarch seeks to strike allegations related to the only cause of action alleged against it: negligence. Monarch alleges that paragraph 72 lines 8-10, paragraph 73, lines 11-14, paragraph 74, lines 15-17, and the damages alleged against Monarch must be stricken because Plaintiff cannot maintain a cause of action for negligence against Monarch based on the contract between the parties.

Pursuant to Code of Civil Procedure section 437(a), “[t]he 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).) The court also “consider[s] the complaint’s exhibits.” (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400.)

Here, Monarch asks the court to consider exhibits to the declarations Monarch filed in support of its Motion to Strike. Monarch did not request judicial notice of these documents and these documents are not exhibits to the operative complaint. As such, they fall outside the scope of a motion to strike because 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.”

Otherwise, it appears that the paragraphs that Monarch moves to strike are properly alleged in support of Plaintiff’s negligence cause of action. The elements of a cause of action for negligence “are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) Here, Plaintiffs allege that Monarch had a fiduciary duty to Plaintiffs; breached that duty when it negligently conducted the home inspection; failed to detect and disclose that the foundation and other structural support at the Property were poorly designed and constructed, were in disrepair, and needed to be replaced. (First Amended Complaint, ¶¶ 72-73.) As a result of this breach, Plaintiffs allege that they have been damaged. (Id., at ¶ 75.)

As such, the Motion to Strike is DENIED.

MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS

In the alternative, it appears that Monarch moves to compel arbitration. However, Monarch’s notice of motion does not state that it is moving to compel arbitration or the grounds pursuant to which it moves to compel arbitration.

“A basic tenet of motion practice is that the notice of motion must state the grounds for the order being sought (Code Civ. Proc., § 1010; Cal. Rules of Court, rule 3.1110(a)), and courts generally may consider only the grounds stated in the notice of motion.” (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.) “The purpose of the notice requirements ‘is to cause the moving party to ‘sufficiently define the issues for the information and attention of the adverse party and the court.’” (Ibid.)

While “it may be sufficient that the supporting papers contain the grounds for the relief sought, even if the notice does not,” Plaintiffs’ failure to address Monarch’s arguments regarding arbitration makes it unclear whether Plaintiffs received proper notice of Monarch’s intention to compel arbitration. (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.)

Regardless, Monarch has not carried its initial burden to establish that its alternative motion to compel arbitration should be granted. “A party who has not signed an arbitration agreement cannot be compelled to arbitrate.” (Betancourt v. Prudential Overall Supply (2017) 9 Cal.App.5th 439, 445.)

Here, Monarch has not established that an enforceable arbitration agreement exists between Monarch and Plaintiff. Monarch attaches an “Agreement” that appears to be between Mia Kim and Monarch. The Agreement contains arbitration language but does not contain Mia Kim or Laesik Kim’s signature evidencing that either Plaintiff agreed to be bound by the contract or arbitration language therein. (ROA 56, Declaration of Sergio Barajas, ¶¶ 4-9, Ex. B.) Monarch proffers zero case law or evidence suggesting that the arbitration language can be enforced without Plaintiffs’ signatures.

Moreover, Monarch has not established that it demanded that the parties arbitrate prior to bring the alternative motion to arbitration and that Plaintiffs refused to arbitrate, both of which are prerequisites to filing a motion to compel arbitration. (Betancourt v. Prudential Overall Supply (2017) 9 Cal.App.5th 439, 444–445 [““[T]o bring a motion to compel arbitration, a party must plead and prove: ‘(1) the parties’ written agreement to arbitrate a controversy ...; (2) a request or demand by one party to the other party or parties for arbitration of such controversy pursuant to and under the terms of their written arbitration agreement; and (3) the refusal of the other party or parties to arbitrate such controversy pursuant to and under the terms of their written arbitration agreement.’”].)

As such, the alternative Motion to Compel Arbitration is DENIED. The denial is without prejudice to re-filing the petition to compel arbitration if Monarch can cure the defects identified above.

Plaintiffs to give notice.