Judge: Walter P. Schwarm, Case: 30-2022-01252131, Date: 2023-08-01 Tentative Ruling
Motion No. 1:
Defendants’ (Neil W. Knuppel and Neil W. Knuppel, A Professional Law Corporation) unopposed Motion to Strike Plaintiff’s First Amended Complaint (Motion), filed on 5-26-23 under ROA No. 164, is GRANTED.
The court DENIES Defendants’ Request for Judicial Notice, filed on 5-26-23 under ROA No. 149, as immaterial to the court’s ruling. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18 (Silverado.)
Code of Civil Procedure section 436, states, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) 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 of Civil Procedure section 435, subdivision (b)(1), states, “Any party, within the time allowed to respond to a pleading may serve and file, a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342, explains, “Preliminarily, we note a motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer. [Citation.]” Code of Civil Procedure section 437, subdivision (a), “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”
The Motion states, “However, Barton clearly holds that any amendment made after a co-defendant’s answer is filed is permitted as to only those causes of action against the non-answering defendants. As such, Plaintiff’s amendment changing his claims pertaining to Knuppel is invalid as a matter of law. Since Plaintiff failed to obtain leave of court to make changes to his claims against Knuppel, the FAC must be stricken as to Knuppel.” (Motion; 3:12-16.)
Code of Civil Procedure section 472, subdivision (a), states, “A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.”
Barton v. Khan (2007) 157 Cal.App.4th 1216, 1220-1221 (Barton), provides, “Thus, in this case of first impression, we must determine whether one defendant's filing of an answer divests the plaintiff of the right to amend the complaint with respect to the causes of action brought against other demurring defendants. We conclude that it does not.” “Presumably, the purpose of the statute permitting amendments as of right before an answer is filed or a demurrer is ruled upon is to promote judicial efficiency and reduce the costs of litigation. If a defect in a pleading can be cured before the defendant has answered or the court has heard a demurrer, both judicial resources and attorney time will be saved in the process. The Alden court's interpretation of section 472, upon which the Individual Defendants rely, leads to unnecessary expenditure of judicial resources and increases the cost of litigation, and is therefore contrary to principles of sound judicial administration. As we read the statute, a plaintiff has a right to amend his or her pleading at any time before a responsive pleading is filed and even after a responsive pleading is filed up to the time of the hearing on the demurrer. Of course, if the only responsive pleading filed in a case is an answer, there will be no hearing on a demurrer.” (Id., at p. 1221.)
Here, Plaintiff filed the Complaint against Defendants on 3-29-22 under ROA No. 2. Defendants filed their Answer to the Complaint on 11-8-22 under ROA No. 48. On 11-16-22 under ROA No. 58, Defendant—Frederick Muscarella (Muscarella) filed a demurrer to the Complaint. On 2-23-23 under ROA No. 102, Defendants filed a motion for judgment on the pleadings that was scheduled for 7-18-23. On 4-10-23, Plaintiff attempted to file a First Amended Complaint (FAC) but the court rejected this filing. (ROA No. 117.) The court’s 4-18-23 Minute Order reflects that the court ordered Plaintiff to file the FAC no later than 4-21-23. On 4-25-23 under ROA No. 135, Plaintiff filed the FAC. Paragraph 18 of the FAC adds new allegations against Defendants.
It is
undisputed that Defendants filed an Answer to the Complaint before the
hearing 4-18-23 hearing on Muscarella’s demurrer and before Plaintiff filed
the FAC. Under Code of Civil Procedure section 472 and Barton,
Plaintiff did not have the legal authority to file a
FAC as to Defendants without obtaining the permission of the court. The court’s
4-18-23 ruling allowing the filing of the FAC as to Muscarella did not impact
Defendants because Barton only authorizes the filing of an amended
complaint without leave as to non-answering defendants.
Since Plaintiff did not obtain the court’s permission to file the FAC as to Defendants, Plaintiff’s filing of the FAC was not in conformity with the laws as to Defendants. Therefore, the court GRANTS Defendants’ (Neil W. Knuppel and Neil W. Knuppel, A Professional Law Corporation) unopposed Motion to Strike Plaintiff’s First Amended Complaint, filed on 5-26-23 under ROA No. 164, and strikes the FAC only as to Defendants.
Defendants are to give notice.
Motion No. 2:
Based on the court’s ruling as to Motion No. 1, Defendants’ (Neil W. Knuppel and Neil W. Knuppel, A Professional Law Corporation) to Plaintiff’s First Amended Complaint (Demurrer), filed on 5-26-23 under ROA No. 163, is OFF CALENDAR as MOOT.
Defendants are to give notice.