Judge Thomas D. Long, Case Number: 22STCV31749, Date: 2024-12-17 Tentative Ruling

On February 6, 2024, the Court sustained the demurrers of Defendants Deyuan Decoration Inc., Jiang Lin, and Ying Xiong and granted Plaintiff Jia Chen 30 days’ leave to amend.

Defendants move to strike the entire TAC because it was not filed within the time specified in the Court’s February 6, 2024 order. (Motion at pp. 9-10.) It is undisputed that Plaintiff’s April 3, 2024 TAC was filed more than 30 days after the Court’s February 6, 2024 order granting leave to amend.

A defendant may move for dismissal when a demurrer to the complaint is sustained with leave to amend and the plaintiff fails to amend the complaint within the allowed time. (Code Civ. Proc., § 581, subd. (f)(2).)

Defendants argue that Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603 (Leader) mandates dismissal. (Motion at pp. 9-10.) According to Defendants, “Comparing Leader with our case, there is not reason why our case should not be dismissed by our court,” and If [L]eader deserves a dismissal, our case deserves more.” (Ibid.) The Court disagrees.

In Leader, the plaintiffs filed an amended complaint after the time allowed by the court. (Leader, supra, 89 Cal.App.4th at p. 612.) The plaintiffs’ failure to file an amended complaint within the time allowed by the court subjected any subsequently filed pleading to a motion to strike and dismissal. (Id. at pp. 613-614.) The Court of Appeal noted that the defendants “recogniz[ed] that the court could allow the amended complaint to be filed,” so they appropriately moved both to strike the pleading and to dismiss the action. (Id. at p. 614.) The court found no abuse of discretion when the trial court exercised its informed discretion to determine whether to grant leave to amend, whether to strike the belated pleading, and whether to dismiss. (Ibid.)

Although Leader is a favorable case for Defendants, it does not mandate dismissal here. Instead, dismissal is permissive. (See Code Civ. Proc., § 581, subd. (f) [“The court may dismiss the complaint . . . .”]) The Court could, in its discretion, strike the TAC, requiring Plaintiff to file a motion for leave to amend the pleadings. Then the Court could, in its discretion, grant the motion to amend and allow the TAC to be filed anyway. (See Code Civ. Proc., § 473, subd. (a)(1).)

Under the circumstances of this case, the Court exercises its discretion to deny the motions to strike and to permit the late filing of the TAC. Defendants have shown no prejudice caused by the TAC’s late filing. When there is no prejudice to the opposing party, “it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court of Cal. In and For Los Angeles County (1959) 172 Cal.App.2d 527, 530; see also Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1308 [quoting Morgan].)

Denying these motions to strike saves time and resources for both the Court and the parties. It is also consistent with the general preference for resolution of actions on the merits. (See Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 509 [“Finally, all things being equal, we deem it preferable to apply our decisions in such a manner as to preserve, rather than foreclose, a litigant’s day in court on the merits of his or her action.”].)

Defendants also move to strike the ninth cause of action because the TAC “failed to address the concern raised [sic] in our demurrer again, it repeatedly happened”. (Motion at pp. 10-11, formatting omitted.)

This abridged demurrer is improperly included in the motions to strike. “Motions to strike and demurrers should be filed as separate documents.” (Weil & Brown, Cal. Prac. Guide: Civil Procedure Before Trial (The Rutter Group June 2024 Update) ¶ 7:162.1.)

In any event, the Court finds that the TAC alleges sufficient facts for fraudulent inducement. (TAC ¶¶ 111, 113.)

Defendants’ motions contain numerous inflammatory and unwarranted statements about opposing counsel:

· “[T]he plaintiff’s attorney didn’t even bother to read demurrers and arguements [sic] filed and sent by Defendants, not to mention doing any serious legal research for them and make the modification accordingly.” (Motion at p. 5.)

· “When confronted by defendants, his excuse [for not timely filing] is more ridiculous . . . .” (Motion at p. 9.)

· “I just can not reasonably believe the complaint could be ever taken care of well.” (Motion at p. 10.)

· “Plaintiff’s attorney never takes this case seriously . . . .” (Motion at p. 11.)

· “Plaintiff’s attorney never treat[s] this case seriously and his attitude deserves punishment.” (Motion at p. 11.)

· “The Plaintiff’s attorney is ridiculous and never take[s] the case seriously that Defendants don’t believe Plaintiff will duly proceed with the case.” (Motion at p. 12.)

None of defense counsel’s commentary advanced their arguments or were relevant to any issues. Demeaning comments to or about opposing counsel are contrary to counsel’s ethical obligations of civility, professional integrity, candor, and cooperation. (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1536-1537.) This Court’s Local Rules specifically forbid such remarks: “Neither written submissions nor oral presentations should disparage the intelligence, ethics, morals, integrity or personal behavior of one’s adversaries, unless such things are directly and necessarily in issue.” (LASC Local Rules, Appendix 3.A, § (c)(2).)

“‘[I]t is vital to the integrity of our adversary legal process that attorneys strive to maintain the highest standards of ethics, civility, and professionalism in the practice of law.’ [Citation.] Indeed, unwarranted personal attacks on the character or motives of the opposing party, counsel, or witnesses are inappropriate and may constitute misconduct. [Citations.]” (In re S.C. (2006) 138 Cal.App.4th 396, 412.)

“[W]e cannot allow the tone of the briefing to pass without comment. . . . Appellant targets both respondent and its counsel in the same freewheeling, unprofessional manner. None of these statements were necessary. None of the vitriol advanced the legal arguments in this case. To the contrary, this incivility created an unnecessary distraction to both opposing counsel and this court. [¶] Emotional diatribes do nothing to support the arguments made by counsel. In fact, this verbiage serves the opposite purpose. It requires the court to spend additional resources filtering out the hyperbole, and requires opposing counsel to bill their client for additional time to compose a response. [¶] Ad hominem attacks and other invective detract from counsel’s legal arguments, signal inappropriate personal embroilment in the dispute, and indicate an inability to engage in the reasoned analysis the courts need and counsel’s clients deserve. When counsel resort to name-calling and to unsupported claims of misconduct, they risk obscuring any meritorious arguments they may have. Appellant’s counsel would be well advised to refrain from incivility in the future.” (WasteXperts, Inc. v. Arakelian Enterprises, Inc. (2024) 103 Cal.App.5th 652, 666-667.)

If any party or counsel engages in subsequent incivility, the Court may set an Order to Show Cause Re: Imposition of Sanctions Under CCP §§ 128 or 128.5(a).

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court