Judge: Theresa M. Traber, Case: BC616434, Date: 2024-05-09 Tentative Ruling

Case Number: BC616434    Hearing Date: May 9, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     May 9, 2024               TRIAL DATE: NOT SET

CASE:                         US Construction Law v. Jean Pierre Christopher Murray, et al (lead case); Jean Pierre Chrisopher Murray, et al. v. US Construction Law, et al.

CASE NO.:                 BC616434 (lead case); BC594432           

MOTION TO STRIKE CROSS-COMPLAINT

MOVING PARTY:               Plaintiff/Cross-Defendant US Construction Law and Cross-Defendant Sean P. Reynolds.

RESPONDING PARTY(S): Defendant/Cross-Complainant Jean Pierre Christopher Murray

CASE HISTORY:

·         07/17/15: Complaint filed (lead case) in San Diego

·         09/11/15: Complaint filed (second case).

·         04/11/16: Lead case transferred to Los Angeles.

·         06/13/16: Cross-Complaint filed in lead case.

·         02/29/19: Cases ordered consolidated. BC616434 designated as lead case.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            These are cross-actions arising from a dispute regarding legal representation. US Construction Law was retained to represent Jean Pierre Christopher and Kathy Murray in two separate lawsuits regarding homes rented by the Murrays in Beverly Hills. US Construction Law filed the lead case as an action for fees owed. The Murrays filed their cross action for legal malpractice in Los Angeles Superior Court. These cases were consolidated on February 22, 2019, and the fee action was designated the lead case.

Cross-Defendants in the lead action move to strike the cross-complaint filed in the fee action (BC616434) as redundant as to the complaint in the legal malpractice action (BC594432).

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TENTATIVE RULING:

Cross-Defendants’ Motion to Strike is DENIED.

DISCUSSION:

Cross-Defendants move to strike the cross-complaint filed in the fee action (BC616434) as redundant as to the complaint in the legal malpractice action (BC594432).

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 make no effort to demonstrate compliance with their statutory meet-and-confer obligations. Nevertheless, the Court will address the motion on its merits.

Requests for Judicial Notice

            Defendants and Cross-Complainants request that the Court take judicial notice of  (1) the Cross-Complaint in the lead case; (2) the January 8, 2016 Minute Order in the lead case; (3) the Complaint in the Legal Malpractice Action consolidated with this case; (4) the March 29, 2016 Minute Order in the Legal Malpractice Action; (5) the July 27, 2016 appellate decision granting Defendants’ writ regarding their motion to stay; (6) the July 28, 2016 Minute Order in this action; (7) the February 22, 2019 Minute Order in this action and (8) the May 24, 2019 Minute Order in this action. These requests are GRANTED pursuant to Evidence Code section 452(d) (court records).

            Defendants also request that the Court take judicial notice of the August 10, 2020 minute order in the action 632 N. Palm Drive, LLC v. Adan Pena, et al., LASC Case No. 19SMCV00434. As this document is not relevant to the Court’s ruling, Defendants’ request is DENIED.

Evidentiary Objections

            Cross-Defendants raise numerous objections to Cross-Complainants’ opposition and supporting declaration. Cross-Defendants cite no authority entitling them to assert evidentiary objections to Cross-Complainants’ arguments. This is unsurprising, as arguments of counsel are not evidence. Cross-Defendants’ Objections Nos. 1-17 are OVERRULED.

The remaining objections pertain to the declaration of Cross-Complainants’ counsel, Justin Escano, in support of the opposition to this motion. As the Court may not consider extrinsic evidence in ruling on a motion to strike, the Escano declaration has no relevance to this motion. The Court therefore declines to rule on the balance of Cross-Defendants’ objections.

Analysis

Cross-Defendants move to strike the cross-complaint filed in the fee action (BC616434) as redundant as to the complaint in the legal malpractice action (BC594432).

Cross-Defendants argue that the Cross-Complaint in the lead case is duplicative of the claims in the Murrays’ September 11, 2015 Complaint and constitutes inappropriate claim splitting. Cross-Defendants claim that Cross-Complainants, by asserting the same causes of action, are attempting to circumvent a March 29, 2016 ruling in the Legal Malpractice action. That ruling sustained US Construction Law’s demurrer without leave to amend as to the second cause of action for breach of fiduciary duty on the grounds that it was duplicative of the Murrays’ other claims. (March 29, 2016 Notice of Ruling on Demurrer to Complaint in Case No. BC594432.)

This argument was previously raised and litigated by Cross-Defendants in connection with the demurrer to the Cross-Complaint and Motion for Sanctions filed on May 2, 2019 after these cases were consolidated. The Court rejected this argument, overruling the demurrer in its entirety and denying the motion for sanctions. (May 24, 2019 Minute Order.) Cross-Defendants entirely failed to address this ruling in their moving papers, despite seeking the same relief as in their previous motions. Under Code of Civil Procedure section 1008, subdivision (e), any application for the same relief or order is a motion for reconsideration or a renewed motion that is governed by section 1008, and the Court has no authority to consider that application except under that code provision. (Code Civ. Proc. § 1008(e).) Thus, as Cross-Complainants argue in opposition, Cross-Defendants’ motion is either an untimely motion for reconsideration under subdivision (a) or a renewed motion under subdivision (b). Cross-Defendants assert that this motion does not fall within section 1008 because the May 24, 2019 ruling did not expressly contemplate the impact of the March 29, 2016 ruling on the demurrer to the Murrays’ Complaint. The Court is not persuaded. These arguments were raised in Cross-Defendants’ previous motions and Cross-Defendants were denied the relief they sought—the dismissal of the Cross-Complaint—in its entirety. Cross-Defendants now seek the same relief, but fail to demonstrate what new or different facts, circumstances, or law warrant a different ruling as required. (Code Civ. Proc. § 1008(b).) The Court is therefore without authority to grant the relief sought at this juncture.

Cross-Defendants argue that if the Cross-Complaint persists, it threatens a multiplicity of pleadings or inconsistent results at trial. While these may be reasonable concerns, the Court cannot reverse a prior ruling without an adequate showing under Code of Civil Procedure section 1008. If and when these matters approach trial by jury, the Court will work with the parties to harmonize the issues and avoid inconsistency or duplication in the results.

CONCLUSION:

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

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated:  May 9, 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.