Judge: Theresa M. Traber, Case: 24STCV31861, Date: 2025-03-25 Tentative Ruling

Case Number: 24STCV31861    Hearing Date: March 25, 2025    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 25, 2025                      TRIAL DATE: NOT SET

CASE:                         Sengbe Group LLC v. Boo Ku CC, Inc.

CASE NO.:                 24STCV31861           

MOTION TO STRIKE ANSWER

MOVING PARTY:               Plaintiff Sengbe Group, LLC

RESPONDING PARTY(S): Defendant Boo Ku CC, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a Proposition 65 Action that was filed on December 4, 2024. Plaintiff alleges that Defendant’s cannabis products contain toxic contaminants.

Plaintiff moves to strike the affirmative defenses asserted in the Answer as improperly pled.

TENTATIVE RULING:

Plaintiff’s Motion to Strike is GRANTED IN PART as to the second through eighth affirmative defenses with leave to amend, and as to the tenth affirmative defense without leave to amend, and otherwise DENIED.

Defendant shall have 20 days leave to amend the Answer.

DISCUSSION:

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 Plaintiff’s counsel states that the parties met and conferred via telephone regarding the disputes raised in this motion on January 24, 2025, but were not able to reach a resolution. (Declaration of Alexander Robinson ISO Mot. ¶ 2.) The parties confirmed the status of their discussions via email on January 27, 2025. (Id. ¶ 4; Exh. A.) Plaintiff has satisfied its statutory meet-and-confer obligations.

Timeliness

            A party may bring a motion to strike within the time allowed to respond to a pleading. Code Civ. Proc. § 435(b); Cal. Rules of Court 3.1322(b). A motion to strike all or part of an answer to a complaint must therefore be brought within 10 days. See Code Civ. Proc. § 430.40(b); Cal. Rules of Court 3.1322(b). However, the Court has the power to strike out all or any part of a pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court on its own motion. Code Civ. Proc. § 436(b). The Court therefore has the authority to consider the matter at any time, even after the statutory deadline has passed. (CPF Agency Corp v. R&S Towing (2005) 132 Cal.App.4th 1014, 1021 overruled on other grounds in Dan’s City Used Cars Inc. v. Pelkey (2013) 569 U.S. 251.)

            Defendant’s Answer was filed on January 21, 2025. Plaintiff’s motion, filed and served on February 19, 2025, is therefore well-outside the statutory time to bring this motion. However, in the interest of clarifying the pleadings, the Court will address the motion on its merits.

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. (Code Civ. Proc. § 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.)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 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].)

Analysis

            Plaintiff moves to strike each of the ten affirmative defenses asserted in the Answer as improperly pled.

1.      First Affirmative Defense: Failure to State Claim

This defense, mislabeled as an affirmative defense, alleges that Plaintiff’s Complaint has failed to state facts sufficient to constitute a cause of. (Answer p.2:16-17.) “The defense of failure to state a claim is, in essence, an argument that the plaintiff has not met its burden of alleging the elements of its claims.” (LL B Sheet 1, LLC v. Loskutoff (2019) 362 F.Supp. 3d 804, 818.) It is not an affirmative defense that relies on the pleading of new factual allegations, so it is not subject to challenge of the sufficiency of the underlying allegations. This defense need not be stricken.

2.      Second Affirmative Defense: Lack of Standing

This defense, mislabeled as an affirmative defense, alleges that Plaintiff’s claim fails because Plaintiff lacks standing to bring this action as a foreign limited liability not registered nor qualified to conduct business in the State of California. (Answer p.2:20-24.) This defense is merely a conclusory legal assertion without supporting facts and is therefore not properly pled. This defense must be stricken.

3.      Third Affirmative Defense: Third-Party Negligence

This affirmative defense alleges that Plaintiff’s claim is barred because any injuries were caused by an unspecified third party. (Answer p.3:1-5.) This defense is merely a conclusory legal assertion without supporting facts and is therefore not properly pled. This defense must be stricken.

4.      Fourth Affirmative Defense: Failure to Give Notice

This affirmative defense alleges that Plaintiff’s claim is barred because Plaintiff failed to give timely and proper notice of any violation. (Answer p.3:8-11.) This defense is merely a conclusory legal assertion without supporting facts and is therefore not properly pled. This defense must be stricken.

5.      Fifth Affirmative Defense: Failure to Comply with Pre-Suit Requirements

This affirmative defense alleges that Plaintiff’s claim is barred because Plaintiff failed to comply with the pre-suit requirements for a Proposition 65 claim. (Answer p.3:14-18.) This defense is merely a conclusory legal assertion without supporting facts and is therefore not properly pled. This defense must be stricken.

6.      Sixth Affirmative Defense: Intervening Negligence of Others

This affirmative defense alleges that Plaintiff’s claim is barred because any injuries were caused by the intervening negligence of an unspecified third party. (Answer p.3:21-24.) This defense is merely a conclusory legal assertion without supporting facts and is therefore not properly pled. This defense must be stricken.

7.      Seventh Affirmative Defense: Apportionment of Fault

This affirmative defense alleges that Plaintiff’s claim is barred to the extent it must be reduced by the proportion of fault attributable to other parties. (Answer p.4:1-3.) This defense is merely a conclusory legal assertion without supporting facts and is therefore not properly pled. This defense must be stricken.

8.      Eighth Affirmative Defense: Intervening and Superseding Cause

This affirmative defense alleges that Plaintiff’s claim is barred because there is an intervening and superseding cause of the injury. (Answer p.4:7-12.) This defense is merely a conclusory legal assertion without supporting facts and is therefore not properly pled. This defense must be stricken.

9.      Ninth Affirmative Defense: Lack of Intent

This defense, mislabeled as an affirmative defense, alleges that Defendant did not knowingly or intentionally engage in the conduct of which it is accused. (Answer p. 4:15-16.) This defense is merely an argumentative denial of the allegations in the Complaint and need not be stricken.  

10.  Tenth Affirmative Defense: Reservation of Rights

This assertion, mislabeled as an affirmative defense, states that Defendant reserves the right to assert additional defenses upon discovery of additional facts. (Answer p.4:19-21.) Plaintiff contends that this assertion is improper and irrelevant. The Court concurs. The proper method to assert new affirmative defenses in a pleading is set forth in Code of Civil Procedure section 472. This assertion is not relevant and should be stricken.

Leave to Amend

            “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.) “Denial of leave to amend constitutes an abuse of discretion unless the [pleading] shows on its face it is incapable of amendment.  [Citation.]  Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

            Here, Defendant has not shown how the answer could be amended to cure the defects identified. However, in light of the liberal standard for permitting amendment of the pleadings, and the defects in the answer arising merely from a paucity of alleged facts, the Court will exercise its discretion to permit leave to amend the answer, except as to the tenth affirmative defense, which is irrelevant and unnecessary. This ruling is without prejudice to Defendant’s right to assert new affirmative defenses pursuant to code.

CONCLUSION:

Accordingly, Plaintiff’s Motion to Strike is GRANTED IN PART as to the second through eighth affirmative defenses with leave to amend, and as to the tenth affirmative defense without leave to amend, and otherwise DENIED.

Defendant shall have 20 days leave to amend the Answer.

Moving Party to give notice.

IT IS SO ORDERED.

Dated:  March 25, 2025                                  ___________________________________

                                                                                    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.