Judge: Teresa A. Beaudet, Case: 19STCV38469, Date: 2023-03-06 Tentative Ruling

Case Number: 19STCV38469    Hearing Date: March 6, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On October 28, 2019, Plaintiffs Willie F. McMullen, Jr., Deanna Welch, and Daijon Carcamo (collectively, “Plaintiffs”) filed this action against Defendants Ana Ward (“Ward”), HDSI Management, Inc. (“HDSI”), Walton Halad Company Two, LLC (“Walton”), and Kimball, Tirey & St. John LLP.   

The operative Second Amended Complaint (“SAC”) was filed on August 9, 2021, and asserts causes of action for (1) breach of contract, (2) defamation per se, (3) discrimination, (4) breach of the implied covenant of quiet enjoyment, (5) negligent supervision of employee, (6) inducing breach of contract, and (7) intentional infliction of emotional distress.

On May 9, 2022, the Court issued an order on Ward, HDSI, and Walton’s special motion to strike portions of the SAC. The May 9, 2022 Order provides, inter alia, that “the Court grants Defendants’ special motion to strike with respect to the breach of the implied covenant of quiet enjoyment, negligent supervision of employee, inducing breach of contract, and IIED causes of action, as well as the breach of contract cause of action as it relates to the submission of HUD-50059 forms to HUD. Defendants must file and serve their answer on or before 5/24/22.” 

On May 24, 2022, Ward, HDSI, and Walton (collectively, “Defendants”) filed an answer to the SAC. On September 7, 2022, the Court issued an Order sustaining in part and overruling in part Plaintiffs’ demurrer to Defendants’ answer. The Court also granted in part and denied in part

Plaintiffs’ motion to strike Defendants’ answer. The Court ordered Defendants to file and serve an amended answer, if any, within 20 days of the date of service of the September 7, 2022 Order.

On September 21, 2022, Defendants filed a First Amended Verified Answer to the SAC.

Plaintiffs now move to strike Defendants’ First Amended Verified Answer to the SAC. Defendants oppose.

Request for Judicial Notice

The Court grants Plaintiffs’ request that the Court take judicial notice of Exhibits “A” and “B” to Plaintiffs’ request for judicial notice.

Discussion

As an initial matter, Plaintiffs submit the Declaration of Willie F. McMullen Jr. in support of the motion, who states that “[o]n September 30, 2022 at approximately 3:00 pm, I called Tiffany Truong on the telephone…The receptionist stated she was either on the phone or away from her desk. She then transferred me to her voicemail. I left her a message informing her that I was attempting to meet and confer with her in regards to the defendants first amended verified answer and gave a brief description of my issues. I informed her if she was in agreement with my request, which was to withdraw the answer today by 6pm, to let me know via email. If she was not, and if I did not hear back from her by 6pm today, I would assume that she is not in agreement and that I would have no choice but to file my motion tonight.” (McMullen Decl.,      ¶ 2.)

As Defendants note, Plaintiffs’ instant motion was filed on September 30, 2022, the same day that McMullen called Defendants’ counsel regarding the motion. Defendants’ counsel states that Plaintiffs’ counsel’s voicemail was the only attempt by Plaintiffs to meet and confer prior to filing the instant motion to strike. (Truong Decl., ¶ 9.) Defendants’ counsel also indicates that she listened to the voicemail again on February 21, 2023, and that at no time during the message did McMullen mention the issue of attaching Defendants’ signed verifications. (Truong Decl.,    ¶ 9.) In the motion, Plaintiffs argue, inter alia, that “Defendants failed to verify their first amended verified answer. There are no verification paragraphs or separate verifications from the Defendants attached to the first amended verified answer.” (Mot. at p. 5:27-6:1.)[1]

Code of Civil Procedure section 435.5 provides, inter alia, as follows: 

“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. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading.

(1) As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency.

(2) The parties shall meet and confer at least five days before the date a motion to strike must be filed. If the parties are unable to meet and confer at least five days before the date the motion to strike must be filed, the moving party shall be granted an automatic 30-day extension of time within which to file a motion to strike, by filing and serving, on or before the date a motion to strike must be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the motion to strike was previously due, and the moving party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.

(3) The moving party shall file and serve with the motion to strike a declaration stating either of the following:

(A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion to strike, and that the parties did not reach an agreement resolving the objections raised by the motion to strike.

(B) That the party who filed the pleading subject to the motion to strike failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.” (Code Civ. Proc., § 435.5, subds. (a)(1)-(3), emphasis added.)

Here, McMullen’s Declaration demonstrates that the parties did not “meet and confer at least five days before the date [the] motion to strike must be filed.” (Code Civ. Proc., § 435.5, subd. (a)(2).) In addition, Defendants’ counsel indicates that Plaintiffs did not mention the issue of attaching Defendants’ signed verifications to the First Amended Verified Answer. (Truong Decl., ¶ 9.) Pursuant to Code of Civil Procedure section 435.5, subdivision (a)(1), “[a]s part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies.”

In light of the foregoing, the hearing on Plaintiffs’ motion to strike is continued to May 3, 2023 at 10:00 p.m. in Dept. 50.¿ 

Plaintiffs are¿ordered to meet¿and confer¿with Defendants within 10 days of the date of this order.¿ Such meeting and conferring must be done in good faith with an effort to try to resolve the issues subject to the motion to strike.  

If the parties are unable to resolve the pleading issues¿or if the parties are otherwise unable to meet and confer in good faith, Plaintiffs are to¿thereafter¿file and serve¿a declaration setting forth the efforts to meet and confer in compliance with Code of Civil Procedure section 435.5, subdivision (a)(3) within 15 days of this order.¿ 

Plaintiffs are ordered to give notice of this order.  

DATED:  March 6, 2023                                ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court