Judge: Thomas S. Mcconville, Case: 2023-01302547, Date: 2023-08-15 Tentative Ruling

The Motion to Strike brought by Defendant Dulce Garrido Oreta is GRANTED, pursuant to Code of Civil Procedure section 436 and Code of Civil Procedure section 128.7, with 5 days-leave to amend.

Pursuant to Code of Civil Procedure, section 436, the court may, upon a motion made pursuant to Code of Civil Procedure section 435 or at any time in its discretion, strike out “any irrelevant, false, or improper matter inserted in any pleading” or strike “out 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.)

Additionally, pursuant to Code of Civil Procedure section 128.7, subsection (a): “Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party.” (Code Civ. Proc., §128.7, subd. (a).) 

Relevant herein, “[a]n unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.” (Code Civ. Proc., §128.7, subd. (a); See also Vaccaro v. Kaiman (1998) 63 Cal.App.4^th 761, 767-768) (“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. . . . [O]mission of counsel’s signature [is] capable of cure.”)).

In this instance, Plaintiff concedes an error occurred which resulted in the filing of an unsigned copy of the Complaint. (Opposition: 2:7-12 and 2:16.)  Given the same, the motion to strike is GRANTED; however, LEAVE TO AMEND is appropriate.

Plaintiff shall file a signed complaint within 5 days of this order.

In addressing this motion, the court reviewed the complaint on file.  It addresses, among other things, issues related to a marital estate—namely the alleged diversion or control of certain assets by defendant.  The underlying issues in the complaint include characterization of assets the parties have acquired, and breaches of duties owed to one party or the other.  These matters are properly addressed in the Family Law matter currently pending in Dulce Oreta v. Efrem Sarmiento, 22D009006.  See Askew v. Askew (1994) 22 Cal. App. 4^th 942, 961-962 (“After a family law court acquires jurisdiction to divide community property in a dissolution action, no other department of a superior court may make an order adversely affecting that division.  Obviously, the actual division of community property is affected by the characterization of specific assets, so the issue of characterization also reposes in the family law court.” (citations omitted).

The court orders the parties to file a request for order in 22D009006, asking the Family Law court to address the property issues that are pleaded in the complaint.

The matter pending in this court is ordered STAYED upon plaintiff’s filing of an amended complaint. 

The court sets this matter for a status conference on February 5, 2024 at 9:00 a.m. in Department C-28.

Defendant shall give notice.