Judge: Theresa M. Traber, Case: 22STCV20261, Date: 2024-01-10 Tentative Ruling

Case Number: 22STCV20261    Hearing Date: March 27, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 27, 2024                      TRIAL DATE: May 7, 2024

CASE:                         Weste Pointe Homes, Inc. v. Michael Zipperstein, et al.

CASE NO.:                 22STCV20261           

MOTION TO STRIKE PORTIONS OF SECOND AMENDED CROSS-COMPLAINT

MOVING PARTY:               Plaintiff and Cross-Defendant West Pointe Homes, Inc. and Cross-Defendant James Stephen Rasmussen

RESPONDING PARTY(S): Defendants and Cross-Complainants, Michael and Mindy Zipperstein, individually and as trustees of the Zipperstein Family Trust dated May 18, 2009

CASE HISTORY:

·         06/21/22: Complaint filed.

·         07/29/22: Cross-Complaint filed.

·         07/31/23: First Amended Cross-Complaint filed.

·         10/11/23: Request for dismissal as to Cross-Defendant Jeanne Rasmussen on all causes of action and as to the fifth and sixth causes of action as to all parties.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for foreclosure on a mechanic’s lien and breach of contract. Plaintiff alleges that Defendants refused to pay for construction work done on their home.

Cross-Defendants West Pointe Homes, Inc. and James Rasmussen move to strike certain paragraphs of the Second Amended Cross-Complaint.

TENTATIVE RULING:

            Cross-Defendants’ Motion to Strike Portions of the Second Amended Cross-Complaint is DENIED.  

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DISCUSSION:

Plaintiff and Cross-Defendant West Pointe Homes, Inc. and Cross-Defendant James Stephen Rasmussen move to strike portions of the Second Amended Cross-Complaint.

Legal Standard

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(a). The court may also strike 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. Id., § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. Id.§ 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. Id.§ 437. “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768. A motion to strike can be used where the complaint or other pleading has not been drawn or filed in conformity with applicable rules or court orders.  Code Civ. Proc., § 436(b). This provision is for "the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed."  Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528 (emphasis in original).

Meet and Confer

 Before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion to strike and file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 435.5(a).) However, an insufficient meet and confer process is not grounds to grant or deny a motion to strike.  (Code Civ. Proc., § 435.5(a)(4).)

Cross-Defendants filed a declaration stating that the parties met and conferred at least five days before filing this motion but were unable to reach a full resolution on this dispute. (Declaration of Demurring Party ¶ 2(a).) Cross-Defendants have satisfied their statutory meet-and-confer obligations.

Requests for Judicial Notice

Cross-Defendants request that the Court take judicial notice of (1) Michael L. Zipperstein’s license as a Certified Public Accountant; (2) a grant deed dated September 27, 2011 and recorded as document number 2011373192 with the Official Records of the County of Los Angeles on October 11, 2011; and (3) a grant deed dated February 19, 2015 and recorded as document number 20150197251 with the Official Records of the County of Los Angeles on February 24, 2015. None of these records are material to the Court’s ruling, for the reasons stated below. Accordingly, Cross-Defendants’ Requests for Judicial Notice are DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 (“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].) 

Analysis

            Cross-Defendants move to strike paragraphs 25 and 26 of the Second Amended Cross-Complaint. These paragraphs allege:

25. The Second Project was a home improvement contract subject to Business and Professions Code §7159 which provides in pertinent part that “(b) For purposes of this section, “home improvement contract” means an agreement, whether oral or written, or contained in one or more documents, between a contractor and an owner or between a contractor and a tenant, regardless of the number of residence or dwelling units contained in the building in which the tenant resides, if the work is to be performed in, to, or upon the residence or dwelling unit of the tenant, for the performance of a home improvement, as defined in Section 7151, and includes all labor, services, and materials to be furnished and performed thereunder, if the aggregate contract price specified in one or more improvement contracts, including all labor, services, and materials to be furnished by the contractor, exceeds five hundred dollars ($500).” Business and Professions Code §7151 provides in pertinent part that “(a) “Home improvement” means the repairing, remodeling, altering, converting, or modernizing of, or adding to, residential property…and shall include, but not be limited to, the construction, erection, installation, replacement, or improvement of driveways, swimming pools, including spas and hot tubs, terraces, patios, awnings, storm windows, solar energy systems, landscaping, fences, porches, garages, fallout shelters, basements, and other improvements of the structures or land which is adjacent to a dwelling house. “Home improvement” shall also mean the installation of home improvement goods or the furnishing of home improvement services.”

26. In addition to being unsigned, by CROSS-COMPLAINANTS, the Proposed Contract fails to comply with the requirements of Business and Professions Code §§7159, et. seq. in numerous respects, including but not limited to failing to include WEST POINTE’s contractor’s license number, right to cancellation notice, lien release notice, mechanics lien warning, start and completion dates, etc. CROSS-DEFENDANTS further failed to comply with Business and Professions Code §§7159 by failing to provide CROSSCOMPLAINANTS with fully executed copy of the Proposed Contract before work on the Second Project was commenced.

(SAXC ¶¶ 25-26.) Cross-Defendants contend that these allegations are irrelevant because the only surviving causes of action in the Second Amended Cross-Complaint are the first and third causes of action for breach of warranties (¶¶ 36-39; 44-47) and the second cause of action for breach of oral contract. (¶¶ 40-43.) Cross-Complainants voluntarily dismissed the fourth cause of action for intentional misrepresentation on February 22, 2024. (Request for Dismissal.) Cross-Defendants argue that these causes of action constitute a concession that the contract is valid and enforceable, contradicting paragraphs 25 and 26. This argument is belied by a cursory review of the Cross-Complaint, which plainly states that Cross-Complainants’ contract claims arise out of an oral contract and not the proposed written contract, which Cross-Complainants contend is not valid. (See SAXC ¶¶ 24, 41.)

            Cross-Defendants also argue that these allegations do not conform with the law because Business & Professions Code section 7159 does not apply to sophisticated parties, citing Asdourian v. Araj (1985) 38 Cal.3d 267, 293. In that case, the California Supreme Court affirmed a judgment on the merits following a three-day trial in an action on a mechanic’s lien and construction contract dispute. (Id.) The high Court reasoned that the purpose of section 7159 is to protect unsophisticated consumers from dishonest contractors, and found that purpose was not hindered by enforcing the contract, its violation of the statute notwithstanding, because the defendant was a sophisticated real estate investor. (Id. at 290-93.) Asdourian did not speak to the propriety of arguments pertaining to section 7159 at the pleading stage, and the only example of Asdourian’s progeny cited by Cross-Defendants which addresses the pleadings rather than judgment merely held that a breach of contract claim was not subject to demurrer where the contract was in violation of section 7159. (Arya Group, Inc. v. Cher (2000) 77 Cal.App.4th 610, 614.) These authorities therefore do not stand for the position advanced by Cross-Defendants that paragraphs 25 and 26 are not in conformity with the law. Cross-Defendants’ arguments concerning the purported sophistication of the Cross-Complainants are therefore irrelevant.

            Cross-Defendants have failed to demonstrate that the allegations which they have challenged are irrelevant or improper. The Court therefore finds that paragraphs 25 and 26 of the Second Amended Cross-Complaint should not be stricken.

CONCLUSION:

            Accordingly, Cross-Defendants’ Motion to Strike Portions of the Second Amended Cross-Complaint is DENIED.  

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated:  March 27, 2024                                  ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.