Judge: Robert B. Broadbelt, Case: 22STCV15735, Date: 2023-11-07 Tentative Ruling

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Case Number: 22STCV15735    Hearing Date: November 7, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants David Glasser, individually and as trustee of the Glasser Family Trust, and Michele Tritt-Glasser

RESPONDING PARTY:       Plaintiff Radenko Milakovic

Motion to Strike Third Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with this motion.

REQUEST FOR JUDICIAL NOTICE

The court denies plaintiff Radenko Milakovic’s request for judicial notice because the matter that is the subject of his request is not a proper subject of judicial notice.  (Evid. Code, § 452.)

DISCUSSION

Defendants David Glasser, individually and as trustee of the Glasser Family Trust, and Michele Tritt-Glasser (“Defendants”) move the court for an order striking the Third Amended Complaint filed by plaintiff Radenko Milakovic (“Plaintiff”) or, in the alternative, the following: (1) the references to Doe defendants through 100; (2) the references to and requests for interest; (3) the allegation that defendant Michele Tritt-Glasser owned the subject property as her sole and separate property; (4) the allegations relating to the Glasser Family Trust and, specifically, the allegations that defendant David Glasser is the sole trustee and that the Glasser Family Trust is an irrevocable trust; and (5) the incorporations by reference.

First, the court denies Defendant’s motion to strike the Third Amended Complaint in its entirety because (1) it appears that it was timely filed (20 days + 5-day extension for mailing), and (2) even if the filing were untimely, the court would, in the interest of justice and judicial economy, exercise its discretion to deem the May 22, 2023 Third Amended Complaint filed as of that date.  (Code Civ. Proc., §§ 472b, 1013, subd. (a).)

Second, the court denies Defendants’ motion to strike the term “100,” referring to Doe defendants 1-100, as set forth in paragraph 7 (TAC pp. 2:25, 3:1) because (1) the Second Amended Complaint named as defendants Doe defendants 1-100, and (2) the amendment, though not expressly allowed by the court’s order granting leave to amend, is not irrelevant, false, or improper, and the court exercises its discretion to permit it.  (SAC p. 1:15 [naming in the caption “DOES 1-100”]; Code Civ. Proc., § 436.)

Third, the court denies Defendants’ motion to strike the references to interest as set forth in paragraphs 9 (TAC p. 3:10), 59 (TAC p. 18:28), 87 (TAC p 23:21-22), and 108 (TAC p. 35:2-3) because (1) the Second Amended Complaint also requested interest, and (2) the revisions in the Third Amended Complaint appear to be stylistic or revisions for the sake of clarity; for example, paragraph 9 of the Second Amended Complaint requested damages “representing principal and interest, which is compounded annually,” while the Third Amended Complaint requests damages “plus interest that is continuing to accrue on the amount due[.]”  (SAC ¶¶ 9, 59, 85, 113; Code Civ. Proc., § 436.)  Thus, the court finds that the amendments to the Third Amended Complaint do not substantively change the claims in the Second Amended Complaint and therefore denies Defendants’ motion as to those allegations.

Fourth, the court denies Defendants’ motion to strike the portion of paragraph 27 (TAC p. 7:5-6) that includes the allegation describing defendant Michele Tritt-Glasser acting “as the owner of the Subject Property ‘as her sole and separate property,’ and as” because (1) the court expressly granted Plaintiff leave to amend his first cause of action to add Michele Tritt-Glasser as a defendant, and (2) this allegation appears to support the first cause of action against her, and therefore Plaintiff did not exceed the scope of the court’s order granting leave to amend by including this allegation.  (April 25, 2023 Order, p. 21:23-25; Code Civ. Proc., § 436, subd. (b).)

Fifth, the court denies Defendants’ motion to strike the allegations relating to the Glasser Family Trust as set forth in paragraphs 31 (TAC p. 7:25), 61 (TAC p. 19:11), 62 in its entirety, 63 (TAC p. 19:17-18), 65 (TAC p. 20:4), 66 (TAC p. 20:12-13), and 68 (TAC p. 20:26) because (1) the court granted Plaintiff leave to amend the first cause of action “to allege facts establishing the type of trust that the Glasser Family Trust is in order to allege the element of injury[,]” and (2) Defendants have not shown, on the face of the Third Amended Complaint or from any matter of which the court is required to take judicial notice, that Plaintiff’s amended allegations are false.  (April 25, 2023 Order, p. 15:3-5; Code Civ. Proc., §§ 437, subd. (a), 436, subd. (a).)

Sixth, the court denies Defendants’ motion to strike the allegations incorporating by reference the previous allegations as set forth in paragraphs 69, 77, 84, 102, and 110, in their entirety, because these allegations are not irrelevant or improper.  (Code Civ. Proc., § 436, subd. (a).)

ORDER

The court denies defendants David Glasser, individually and as trustee of the Glasser Family Trust, and Michele Tritt-Glasser’s motion to strike.

The court orders defendants David Glasser, individually and as trustee of the Glasser Family Trust, and Michele Tritt-Glasser to file an answer to the Third Amended Complaint within 10 days of the date of this order.

The court orders plaintiff Radenko Milakovic to give notice of this ruling.

IT IS SO ORDERED.

DATED:  November 7, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court