Judge: Ronald F. Frank, Case: 23TRCV01353, Date: 2023-08-17 Tentative Ruling

Case Number: 23TRCV01353    Hearing Date: August 17, 2023    Dept: 8

Tentative Ruling¿ 

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HEARING DATE:                 August 17, 2023¿¿ 

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CASE NUMBER:                  23TRCV01353

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CASE NAME:                        Juan Lemus; Charmain Agravante-Lemus v. Robin Taporco, et al.             .¿¿¿ 

MOVING PARTY:                Plaintiff/Cross-Defendants, Juan and Charmain Agravante-Lemus

 

RESPONDING PARTY:       Defendants, Robin Taporco and Jerelyn Taporco

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TRIAL DATE:                        None Set.   

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MOTION:¿                              (1) Motion to Strike 

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Tentative Rulings:                  (1) DENIED

 

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I. BACKGROUND¿¿ 

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A. Factual¿¿ 

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On April 28, 2023, Plaintiffs, Juan Lemus and Charmain Agravante-Lemus filed a Complaint against Defendants, Robin Taporco, Jerelyn Taporco, and DOES 1 through 100. The Complaint alleges causes of action for: (1) Breach of Oral Contract; (2) Negligent Misrepresentation; and (3) Fraudulent Misrepresentation.

 

On June 7, 2023, Defendants brought a Cross-Complaint against Plaintiffs, alleging causes of action for: (1) Breach of Oral Contract; (2) Fraud – Concealment; (3) Negligence; and (4) Breach of Implied Covenant of Good Faith and Fair Dealing. The Cross-Complaint alleges that a conference held on February 1, 2023 involved licensing issues. Cross-Complainants argue that the purported transfer of a license by the Taporcos, the sellers, was not appropriate and the Buyers, the Lemuses, needed to file their own individual application for a license. However, Cross-Complainants assert that in an interview with the Department of Social Services (“ DSS”), the Lemuses refused to file an individual application for a license. Instead, Cross-Complainants argue they demanded a refund from the DSS, who was not involved in the sale. As a result, Cross-Complainants argue that there was no longer a licensed person at the facility and the facility was closed, and all residents relocated as of February 7, 2023.

 

Plaintiffs/Cross-Defendants now bring a Motion to Strike portions of the Cross-Complaint.

 

B. Procedural¿¿ 

 

On July 13, 2023, Cross-Defendants filed a motion to strike. On July 24, 2023, Cross-Complainants, filed an opposition. On August 8, 2023, Cross-Defendants filed a reply brief.

 

II. REQUEST FOR JUDICIAL NOTICE

 

            Along with their moving papers, Cross-Defendants have filed a Request that this Court take Judicial Notice of the following document:

 

1.      Cross-Complaint of Robin Taporco and Jerelyn Taporco.

 

The Court GRANTS this request and takes judicial notice of the above document.

 

¿III. ANALYSIS¿ 

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A. Motion to Strike

¿ 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 thereof. (Code Civ. Proc., § 435, subd. (b)(1).) 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. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)¿¿ The ruling on a motion to strike ordinarily invokes the trial court's discretion.  (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.)

 

 

B. Discussion

 

Here, Cross-Defendants seek to strike the following from the Cross-Complaint:

1.      Page 11, Line 27 to Page 12, Line 1 and Page 12, Line 8 to Line 8: "'Their intentional refusal to even make an application for a license was a breach of their contractual obligations., that as a result of the breaches of contract on the part of Cross-Defendants LEMUS, the license was forfeited and the business was forced to close....”

2.      Page 15, Lines 1-2: “The immediate forfeiture of the license was disclosed to the Cross-Defendants LEMUS as the outcome of their refusal to apply for the license."

3.      "when refusing to apply for a license when offered to them. ..as a result of their actions, they had destroyed the asset....

Cross-Defendants argue that Cross-Complainants admit to the truth of the letter from the DSS by using it as an exhibit in their cross-complaint. Particularly, Cross-Defendants assert that the Cross-Complaint references the February 14, 2023 DSS letter attached to the Cross-Complaint as Exhibit A page 2, which letter states that the Cross-Complainants “forfeited” their license to operate LOMITA in November 2022 by selling and transferring the facility to the Cross-Defendants at the time, and no longer being interested in maintaining the license. Cross-Defendants argue that Cross-Complainants appear to misunderstand the letter, as they recharacterize the letter as if it also evidences Cross-Defendants’ subsequent actions as a basis for forfeiture. Cross-Defendants contend this mischaracterization is unwarranted for several reasons. First, they argue that the letter is not addressed to the Cross-Defendants, and therefore it does not inform them that they (the Lemuses) have forfeited the Taporco’s license to operate Lomita, but is instead addressed solely to the Taporcos and it identifies which acts or omissions of them caused the forfeiture. Second, Cross-Defendants contend that they never held a DSS license, and therefore, cannot be addressed as a “Licensee,” and as they have never held a license, cannot be a party who is “no longer interested in maintaining a license.” Third, they argue that the first sentence indicates that the forfeiture occurred on November 16, 2022, three months before February 1, 2023, thus showing the Cross-Defendants actions in February 2023 as not causing the forfeiture in November 2022. Lastly, Cross-Defendants argue the license was held by the Taporcos, and thus show they could only forfeit their license.

In opposition, Cross-Complainants argue that Cross-Defendants’ Motion to Strike ignores the rule that facts alleged in a cross-complaint are considered true for purposes of a Motion to Strike. The Court disagrees with this take on the arguments. Instead, the Court’s view is that the moving parties here are arguing that the allegations of the Cross-Complaint are inconsistent with their interpretation of the DSS letter but have not brought a demurrer on grounds of uncertainty.  It appears to the Court that the parties’ argument flowing from the language of the February 14, 2023 letter are just that, competing arguments, and are not a basis in the exercise of the Court’s discretion that warrants a motion to strike.  Accordingly, the Motion to Strike is denied.  An Answer to the Cross-Complaint is due within 20 days.