Judge: Salvatore Sirna, Case: 23PSCV02124, Date: 2023-10-09 Tentative Ruling
Case Number: 23PSCV02124 Hearing Date: January 17, 2024 Dept: G
Defendants John Zhong and Catherine Li’s Motion to Set
Aside (Vacate) Judgment of Order Granting Preliminary Injunction
Respondent: Plaintiff City of Diamond Bar
TENTATIVE RULING
Defendants John Zhong and Catherine Li’s Motion to Set Aside (Vacate) Judgment of Order Granting Preliminary Injunction is DENIED.
On its own motion pursuant to Code of Civil Procedure section 436, subdivision (b), the court STRIKES Defendants John Zhong and Catherine Li’s Cross-Complaint filed December 18, 2023, without leave to amend.
BACKGROUND
This is a nuisance abatement action. Defendants John Zhong and Catherine Li are the alleged owners of real property on Knoll Court in Diamond Bar. From March 2022 to present, the City of Diamond Bar (the City) alleges Zhong and Li have been utilizing the Diamond Bar property for short-term rentals in violation of Diamond Bar Municipal Code section 22.08.030. The City alleges that despite multiple notices of violation, Zhong and Li have failed to comply.
On July 14, 2023, the City filed a complaint against Zhong, Li, and Does 1-50, alleging (1) public nuisance and (2) public nuisance per se.
On October 17, 2023, the City filed a motion for a preliminary injunction. On December 7, the court granted the City’s motion.
On December 14, 2023, Zhong and Li filed a notice of appeal from the court’s December 7 ruling. On the same day, Zhong and Li also filed the present motion.
On December 18, 2023, Zhong and Li filed a cross-complaint against the City, Greg Gubman, and Ronnie Ramirez, alleging the following causes of action: (1) violation of article I, section 8 of the U.S. Constitution; (2) violation of the 14th Amendment of the U.S. Constitution; (3) unfairly interfering with Zhong and Li’s rental business; and (4) intentional infliction of emotional distress (IIED).
A hearing on Zhong and Li’s motion is set for January 17, 2024, along with a case management conference on February 27.
ANALYSIS
Motion to Vacate Preliminary Injunction
Zhong and Li move to vacate the court’s grant of a preliminary injunction in favor of the City. For the following reasons, the court DENIES their motion.
As a general rule, “a trial court has no jurisdiction to vacate, modify or otherwise change an order that is the subject of a pending appeal.” (Royals v. Lu (2022) 81 Cal.App.5th 328, 342; see Laidlaw Waste Systems, Inc. v. Bay Cities Services, Inc. (1996) 43 Cal.App.4th 630, 641.)
Here, Zhong and Li have filed a notice of appeal on December 14, 2023 from the court’s December 7 order. Because this order is now the subject of a pending appeal, the court lacks jurisdiction to hear Zhong and Li’s separate motion to vacate the same order. (See Jack v. Ring LLC (2023) 91 Cal.App.5th 1186, 1211 [holding the trial court correctly found it lacked jurisdiction to hear a motion for reconsideration regarding an order that had been appealed].)
Accordingly, Zhong and Li’s motion is DENIED.
Motion to Strike
On its own motion, the court STRIKES the Cross-Complaint filed by Zhong and Li for the following reasons.
Pursuant to Code of Civil Procedure section 436, subdivision (b), “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: . . . [s]trike 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.” (See Lodi v. Lodi (1985) 173 Cal.App.3d 628, 631 [“[T]he complaint was not drawn in conformity with the laws of this state and was thus properly subject to the court's own motion to strike under section 436, subdivision (b).”].)
In filing a cross-complaint against the plaintiffs in an action, the defendant must file the cross-complaint “before or at the same time as the answer to the complaint.” (Code Civ. Proc., § 428.50, subd. (a).) If plaintiff fails to do so, plaintiff must obtain leave of the court to file such a cross-complaint. (Code Civ. Proc., § 428.50, subd. (c).)
Here, Zhong and Li’s Cross-Complaint is untimely as it was filed on December 18, 2023, which is 122 days after they filed their answer to the City’s Complaint on August 18. Furthermore, they failed to file a motion requesting leave to file such a cross-complaint.
Accordingly, on its own motion, the court STRIKES Zhong and Li’s Cross-Complaint as untimely. Although the court does not grant leave to amend, Zhong and Li may file a properly noticed motion for leave to file a cross-complaint.
CONCLUSION
Based on the foregoing, Zhong and Li’s motion to vacate judgment is DENIED.