Judge: Serena R. Murillo, Case: 22STCV27630, Date: 2023-03-07 Tentative Ruling

Case Number: 22STCV27630     Hearing Date: March 7, 2023    Dept: 29

TENTATIVE
Motion to Strike is DENIED.


Background

On August 24, 2022, Plaintiff Fernando Guerrero filed a complaint against Defendants Romuald Ansermet, Vermont Avenue Fee Owner, LLC, TruAmerica Multifamily LLC; Capri Investment Group, LLC, Greystar California, Inc., alleging 8 causes of action for (1) negligence; (2) negligence count (against owner Defendants and Does 1-20); (3) battery; (4) intentional infliction of emotional distress; (5) negligent infliction of emotional distress; (6) assault; (7) false imprisonment; (8) premises liability. The complaint alleges that Defendant Ansermet, along with two other unnamed defendants, unlawfully attacked Plaintiff by chasing, restraining, and striking Plaintiff in the face, causing injury to Plaintiff on the premises owned and controlled by Defendants Vermont Avenue Fee Owner LLC, TruAmerica Multifamily LLC, and Capri Investment Group and managed by Greystar California, Inc.

On February 7, 2023, Defendant Ansermet filed the instant Motion to Strike. On February 22, 2023, Plaintiff Guerrero (“Plaintiff”) filed Opposition Papers to Defendant Ansermet’s Motion to Strike.  

Discussion

A. Meet and Confer -

Legal Standard 

“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (CCP § 435.5(a))

The Court notes that there is no evidence that Defendant, as the moving party, made any efforts to meet and confer with Plaintiff regarding the instant Motion to Strike.

Therefore, the Meet and Confer Requirement remains unsatisfied. However, per CCP § 435.5(a)(4), “A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.”  

B. Timeliness of Motion to Strike –

Legal Standard 

A motion to strike any pleading must be filed “within the time allowed to respond to a pleading”—e.g., 30 days after service of the complaint or cross-complaint unless extended by court order or stipulation. [CCP § 435(b)(1)]. This does not affect the court's power to strike sua sponte. Courts are specifically authorized to strike a pleading upon a motion or at any time in the court's discretion. [CCP § 436]

Analysis 

Defendant Ansermet moves to strike Plaintiff’s Complaint in its entirety; however, the motion will be denied because it is untimely. A notice of motion to strike must be given within the time allowed to plead. (Cal. Rules of Court, Rule 3.1322(b)). The time allowed to plead is 30 days. (CCP § 471.5)

Plaintiff filed proof of service with the Court showing service was completed by both substitute service and by mailing on September 7, 2022. Therefore, Defendant’s deadline was October 7, 2022. The current Motion to Strike was not filed with this court until February 7, 2023. Therefore, it is untimely.

Conclusion