Judge: Virginia Keeny, Case: 23VECV00127, Date: 2023-02-27 Tentative Ruling

Case Number: 23VECV00127    Hearing Date: February 27, 2023    Dept: W

NEOPLANT USA, INC. v. SIL PARK, D.D.S., et al.

 

Defendants SIL PARK and SIL PARK, D.D.S, a Dental Corp.’S MOTION TO STRIKE

 

Date of Hearing:        February 27, 2023                             Trial Date:       None set.  

Department:              W                                                        Case No.:        23VECV00127

 

Moving Party:            Defendants Sil Park and Sil Park, D.D.S

Responding Party:     Plaintiff Neoplant USA, Inc.

 

BACKGROUND

 

This is an unlawful detainer action. Plaintiff Neoplant USA, Inc. filed a 30-Day Notice to Quit. The instant action is related to 22STCV35335 (Sil Park and Sil Park DDS, a Dental Corp. v. Neobiotech Co., LTD., et al.).

 

[Tentative] Ruling

 

Defendant Sil Park’s Motion to Strike is DENIED.

Defendant Sil Park, D.D.S Motion to Strike is DENIED.

 

ANALYSIS

 

Defendants move to strike Plaintiff’s claim for daily damages on the grounds the dates alleged in the complaint and the exhibits attached demonstrate Plaintiff’s complaint is legally insufficient. As a result, Defendants move to strike the date “November 6, 2022”, found in Paragraph 9(b)(1), on Page 3 and the date “November 7, 2022”, found in Paragraph 19(g), on Page 4. Defendants also note Paragraph 6(a)(2) and Paragraph 13 are inconsistent.[1]

 

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. (CCP §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. (CCP §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. (CCP §436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (CCP §437.) The face of the complaint includes exhibits attached to the complaint. (See Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) “If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence.” (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

 

Defendants argue the allegation in 19(g) that the damages should accrue from 11/7/2022 because the rental terminated that day is legally deficient and is excessive, pursuant to statute and case law. Defendants cite Civil Code section 1946 to support their contention. Section 1946 provides:

 

A hiring of real property, for a term not specified by the parties, is deemed to be renewed as stated in Section 1945, at the end of the term implied by law unless one of the parties gives written notice to the other of that party's intention to terminate the same, at least as long before the expiration thereof as the term of the hiring itself, not exceeding 30 days; provided, however, that as to tenancies from month to month either of the parties may terminate the same by giving at least 30 days' written notice thereof at any time and the rent shall be due and payable to and including the date of termination.

 

Defendants contend that pursuant to Section 1946, if the termination is to be effective at the end of the month of November, then the notice must be served prior to November 1st and the tenancy is not terminated until November 30th. As a result, the period did not begin and end October 7th to November 6th as Plaintiff’s complaint states.

 

The complaint alleges this is a month to month tenancy. Defendants do not dispute this. As a result, the second half of Civil Code section 1946 applies to the facts at hand; not the first. The second half of Section 1946 states as to month-to-month tenancies, either party may terminate the tenancy by giving at least 30 days' notice, and rent is due and payable to the date of termination. Defendants mistakenly rely on the first half of the Section, which involves tenancy that is not subject to a term. As a result, all that is needed to be alleged is that 30 days written notice was given. The complaint does so.

 

Accordingly, Defendants’ Motion to Strike is DENIED.

 

 


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