Judge: Richard Y. Lee, Case: 30-2022-01258599, Date: 2022-11-17 Tentative Ruling
Defendant ERP Operating Limited Partnership (erroneously sued as “Equity Residential”) moves pursuant to Code of Civil Procedure section 436 to strike the following allegations from the Complaint on the grounds that they are irrelevant and improper:
• All references to Plaintiff, Alexandra Cardenas, suing in her individual capacity, including (1) the caption; and (2) page 1, line 24 of the Complaint.
• Any claim asserted by “L.C.” as a minor suing through his Guardian Ad Litem, Alexandra Cardenas, including (1) the caption; (b) page 1, lines 24 and 25 of the Complaint; and (3) paragraph 1, page 2, lines 5-6 of the Complaint.
• All references to “L.C.” and/or “Minor-Plaintiff”, including at (1) the caption; (2) page 1, line 25; (3) paragraph 1, page 2, lines 5-6; (4) paragraph 11, page 3, line 22; and (5) paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 37, 38, 39, 40, 41, 45, 47, 49, 50, 53, 54, and 55.
• The entire Complaint as to Alexandra Cardenas, suing in her individual capacity.
• The entire Complaint as Alexandra Cardenas suing in her capacity as Guardian Ad Litem of L.C.
• Paragraphs 57 through 59.
• Paragraphs 60 through 63.
• Plaintiffs’ prayer for attorney’s fees (paragraph 5 of the Complaint’s prayer).
The motion is untimely. A demurrer must be filed “within 30 days after service of the complaint.” (Code Civ. Proc., § 430.40, subd. (a).) A motion to strike must be filed within the time allowed to respond to a pleading. (Code Civ. Proc., § 435, subd. (b)(1).)
The “demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., § 430.41, subd. (a)(2).) “The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension.” (Ibid.) “Any further extensions shall be obtained by court order upon a showing of good cause.” (Ibid.)
Here, Moving Party was served with the Summons and Complaint on Thursday, June 23, 2022. (ROA # 19.) 30 days after Thursday, June 23, 2022 is Saturday, July 23, 2022. Pursuant to Code of Civil Procedure section 2016.060, the 30 days is extended until Monday, July 25, 2022. On Monday, July 25, 2022, Moving Party timely filed the requisite meet and confer declaration to trigger the automatic 30-day extension. However, because the declaration was served by email, Moving Party had until Wednesday, July 27, 2022 to file the declaration pursuant to Code of Civil Procedure section 1010.6(a)(4).
30 days from Wednesday, July 27, 2022 is Friday, August 26, 2022. Again, because the Motion was served by email, the time to serve and file the responsive pleaded is extended by two court days pursuant to Code of Civil Procedure section 1010.6(a)(4). Thus, the Motion to Strike was due Tuesday, August 30, 2022.
The Motion to Strike, however, was not served until Wednesday, August 31, 2022. As such, the Motion to Strike is DENIED as untimely.
Nevertheless, on the merits, the motion is also DENIED. 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.” (Code Civ. Proc., § 436.)
As an initial matter, Plaintiffs agree that “any portions of the Complaint which reference Plaintiff Cardenas in her individual capacity should be stricken” as well as the request for attorney’s fees against Moving Party. As such, these allegations are deemed STRICKEN.
Next, Moving Party contends that any claim asserted by “L.C.” as a minor suing through his Guardian Ad Litem and all references to Plaintiff as L.C. or a minor shall be stricken because Plaintiff is no longer a minor. Plaintiff contends that the complaint was properly plead because Plaintiff was a minor at the time of the incident and when the complaint was filed with the court.
Moving Party correctly points out that “[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” (Code Civ. Proc., § 367.) One exception to this rule is stated in Code of Civil Procedure section 372: if a part to the action is a minor, the minor shall appear by a guardian. (Code Civ. Proc., § 372, subd. (a).) Importantly, Code of Civil Procedure section 373 requires that the appointment of the guardian ad litem must be made before the summons is issued. (Code Civ. Proc., § 373.) Here, L.C. was a minor at the time that the lawsuit was filed. L.C.’s birthday is June 21, 2004. The action was filed on May 9, 2022. Based on the allegations in the operative Complaint, it appears that L.C. was 30 days shy of his 18th birthday on the day the action was filed. As such, L.C. properly appeared as a minor in the operative Complaint and L.C. was not legally permitted to initiate this lawsuit without a guardian based on his age at the time this action was filed. The Court DECLINES to strike the claims asserted by “L.C.” as a minor suing through his Guardian Ad Litem and all references to Plaintiff as L.C. or a minor because they are properly alleged by on the date the litigation was filed.
Finally, Moving Party seeks to strike paragraphs 57-63 on the grounds that they assert allegations in support of claims that are not alleged in this lawsuit. Plaintiffs argue that such allegations support their negligence cause of action.
The elements 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, the allegations in paragraphs 57-63 are related to Plaintiffs’ cause of action for negligence. For example, paragraph 57 alleges that Moving Party breached its duty in relation to safety precautions at the subject premises, paragraph 58 alleges Moving Party breached its duty to maintain the premises in a safety condition, paragraph 59 alleges that Moving Party breach its duty to prevent safety and security threats and provide safe living conditions, paragraph 60 alleges that Moving Party breached its duty to provide comfortable enjoyment of life at the premises, paragraph 61 alleges that Moving Party’s breach caused damage to Plaintiffs by way of interfering with their use and enjoyment of the premises and causing them to live in fear, paragraph 62 alleges that Moving Party’s breach damages Plaintiffs’ health, and paragraph 63 alleges that Moving Party had a duty to abate the threats and nuisances at the premises but breached that duty when they did not protect Plaintiffs from the foreseeable harm caused by the third parties. As such, these allegations are relevant to Plaintiffs’ negligence claims and the Motion to Strike is DENIED as to these allegations.
Moving Party shall file an answer within 30 days of the notice of ruling.
Plaintiffs to give notice.