Judge: Theresa M. Traber, Case: 23STCV13971, Date: 2024-04-29 Tentative Ruling

Case Number: 23STCV13971    Hearing Date: April 29, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     April 29, 2024                        TRIAL DATE: NOT SET

CASE:                         Jila Babazadeh-Shraga, et al., v. Ficrest Integration, Inc., et al.

CASE NO.:                 23STCV13971           

MOTION TO STRIKE PORTIONS OF FIRST AMENDED CROSS-COMPLAINT

MOVING PARTY:               Plaintiffs/Cross-Defendants Jila Babazadeh-Shraga and Ephraim Shraga

RESPONDING PARTY(S): No response on eCourt as of 4/23/24

CASE HISTORY:

·         06/15/23: Complaint filed.

·         08/21/23: Cross-Complaint filed.

·         11/06/23: First Amended Cross-Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a contractual fraud and construction defect action. Plaintiffs allege that Defendants promised to install a state-of-the-art smart home system, but, once installed, the systems were found to be defective and in operative. Plaintiffs further allege that Defendants abandoned the project before completing the full scope of work.

Plaintiffs, as Cross-Defendants, move to strike portions of the First Amended Cross-Complaint.

TENTATIVE RULING:

Cross-Defendants’ Motion to Strike is GRANTED.

DISCUSSION:

            Plaintiffs, as Cross-Defendants, move to strike portions of the First Amended Cross-Complaint.

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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).)

The declaration of Valerie Horn in support of the motion states that she met and conferred with Cross-Complainant’s counsel on December 5, 2023 via telephone and again on December 12, 2023 via email, but the parties were not able to resolve this dispute. (Declaration of Valerie F. Horn ISO Mot. ¶ 2.) Cross-Defendants have therefore satisfied their statutory meet and confer obligations.

Analysis

Plaintiffs, as Cross-Defendants, move to strike portions of the First Amended Cross-Complaint pertaining to certain prayers for relief on the first eight causes of action. Specifically, Cross-Defendants seek to strike Prayer No. 5 for imposition of a constructive trust on the fourth cause of action; Nos. 6 and 7 for disgorgement and money damages, respectively, under the fifth cause of action, No. 8 and 9 for disgorgement and money damages under the sixth cause of action, Nos. 10 and 11 for disgorgement and imposition of a constructive trust under the seventh cause of action, and No. 14 for punitive damages under the eighth cause of action. On April 11, 2024, Cross-Complainants requested dismissal of the first eight causes of action without prejudice. (April 11, 2024 Request for Dismissal.) Thus, these prayers for relief appear to be orphans of the dismissed causes of action and should be stricken as improper.

CONCLUSION:

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

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated:  April 29, 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.