Judge: Theresa M. Traber, Case: 23STCV07444, Date: 2024-04-24 Tentative Ruling

Case Number: 23STCV07444    Hearing Date: April 24, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     April 24, 2024                        TRIAL DATE: NOT SET

CASE:                         Nicole Management, LLC v. B-Side Group, LLC

CASE NO.:                 23STCV07444           

DEMURRER TO CROSS-COMPLAINT AND MOTION TO STRIKE CROSS-COMPLAINT

MOVING PARTY:               Cross-Defendants Nicole Management, LLC, Masoud Omrany, and Ramin Omrany

RESPONDING PARTY(S): Cross-Complainants B-Side Group, LLC, Gerald Aschoff, and Todd Hughes

CASE HISTORY:

·         04/03/23: Complaint filed.

·         10/17/23: Cross-Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for breach of a rental contract. Plaintiff alleges that Defendants failed to pay rent on a commercial lease agreement.

Cross-Defendants Nicole Management, LLC, Masoud Omrany, and Ramin Omrany demur and move to strike the cross-complaint.

TENTATIVE RULING:

            Cross-Defendants’ Motion to Strike the Cross-Complaint is GRANTED.

            This ruling is without prejudice to a motion for leave to file a cross-complaint.

            Cross-Defendants’ Demurrer to the Cross-Complaint is MOOT.

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DISCUSSION:

Motion to Strike Cross-Complaint

            Cross-Defendants move to strike the Cross-Complaint in its entirety. As the motion asserts serious procedural defects with the Cross-Complaint, the Court addresses the Motion to Strike first.

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 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.) 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).) This provision may be used 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).)

            The Declaration of Cross-Defendant’s counsel asserts that he met with Cross-Complainants’ counsel at an unspecified date and time via telephone to resolve the issues, but that the issues were not resolved. This vague declaration does not satisfy Cross-Defendants’ meet-and-confer obligations. Nevertheless, the Court will consider the motion on its merits.

Analysis

            Cross-Defendants move to strike the Cross-Complaint on the grounds that it is untimely filed without leave of Court.

            Code of Civil Procedure section 428.50 states that “[a] party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint. (Code Civ. Proc. § 428.50(a).) Cross-Complainants Aschoff and Hughes filed their answer on June 29, 2023. Cross-Complainant B-Side Group, LLC never responded to the Complaint and defaulted on August 1, 2023, and the Cross-Complaint was filed on October 17, 2023.

            Cross-Complainants contend that the Cross-Complaint is timely because it also names Masoud and Ramin Omrany, who were not parties to the original Complaint, as Cross-Defendants, citing subdivision (b) of the same statute. This provision states that “[a]ny other cross-complaint” besides one against a party to the action “may be filed at any time before the court has set a date for trial.” (Code Civ. Proc. § 428.50(b).) Case law is silent on the construction of these two provisions where a cross-complaint names both a Plaintiff and third parties as cross-defendants. However, statutory construction requires that a more particular provision controls over a general provision. (Civ. Code § 1859.) Since subdivision (a) places more stringent requirements on when a cross-complaint may be filed and specifically applies to cross-complaints where a plaintiff is named as a cross-defendant, the Court finds that subdivision (a) controls in this instance. Thus, the Court finds that this Cross-Complaint could not be filed without leave after the answer was filed. (Code Civ. Proc. § 428.50(c).) Since leave to file this pleading was never sought, the Cross-Complaint is improper.

            More gravely, Cross-Defendants argue with considerable force that the Cross-Complaint is improper because it is filed on behalf of B-Side Group, LLC, a party who defaulted on August 1, 2023. Cross-Complainants contend that the Cross-Complaint is nevertheless proper notwithstanding B-Side Group’s default because the claims in the Cross-Complaint are derivative claims by the individual Cross-Complainants. Even so, as the Cross-Complaint is untimely and filed without leave of Court, the Cross-Complaint must be stricken.

            As the Cross-Complaint was filed without leave of Court and one of the parties purporting to bring the cross-complaint is in default, the Cross-Complaint must be stricken as improper and untimely.

Conclusion

            Accordingly, Cross-Defendants’ Motion to Strike the Cross-Complaint is GRANTED.

Demurrer to Cross-Complaint

            Because the Court has stricken the Cross-Complaint as improperly filed, the Court does not reach the arguments raised in Cross-Defendants’ demurrer, as the Demurrer is MOOT.

CONCLUSION:

            Accordingly, Cross-Defendants’ Motion to Strike the Cross-Complaint is GRANTED.

            This ruling is without prejudice to a motion for leave to file a cross-complaint.

            Cross-Defendants’ Demurrer to the Cross-Complaint is MOOT.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated:  April 24, 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.