SUPERIOR COURT OF CALIFORNIA 

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT 

DEPARTMENT V 

 

 

 

MOVING PARTIES: Defendants Hot & Cold Plumbing and Kyle Koji Hiraoka 

 

RESPONDING PARTY: None 

Motion to Strike Portions of the Complaint 

The court considered the moving papers. The motion is unopposed. 

BACKGROUND 

On August 4, 2023, Plaintiffs Narciso Dublan Lopez (“Lopez”) and Virgina Garcia (“Garcia”) (collectively, “Plaintiffs”) filed this action against Defendants Hot & Cold Plumbing, Inc. (“Hot & Cold”) and Kyle Koji Hiraoka (“Hiraoka”) (collectively, “Defendants”) for motor vehicle and general negligence arising from a car accident.  

On December 7, 2023, Defendants filed the instant motion to strike portions of the Complaint, or alternatively, for judgment on the pleadings. Plaintiffs filed a notice indicating that they did not oppose Defendants’ motion to strike. 

LEGAL STANDARD 

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.)  

DISCUSSION 

Defendants move to strike the allegations in the Complaint of independent negligence against Hot & Cold, including that Hot & Cold negligently entrusted, hired, trained, and supervised Hiraoka.  Hot & Cold’s Answer expressly admits to course and scope as to its driver, Hiraoka, and therefore accepts vicarious liability should any be found against Hiraoka. Alternatively, Defendants move for judgment on the pleadings as to any claim for negligent entrustment.  Given Hot & Cold’s position regarding vicarious liability, any independent cause of action for negligence against Hot & Cold is subsumed within Plaintiff's causes of action for negligence against Hiraoka. (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 871.)  

Based on the foregoing, the court GRANTS the motion.