Judge: Yolanda Orozco, Case: 20STCV00961, Date: 2022-12-07 Tentative Ruling
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Case Number: 20STCV00961 Hearing Date: December 7, 2022 Dept: 31
MOTION TO
STRIKE IS GRANTED
Background
Plaintiff Rosa Herrera (“Plaintiff”) filed this action against Defendants Jose Ontiveros, Jr., MOR Financial Services, Inc., Cynthia Ontiveros, and First American Title Company on January 8, 2022 alleging the following claims:
1) To Set Aside and Void
Transfer of Title to Real Property
3) To To Set Aside and Void
Creation of Liens on Real Property
4) To Impose Constructive
Trust on Proceeds, Property and Assets Resulting from Unjust Enrichment and
Conversion
5) Quiet Title
On November 08, 2022,
Defendant Jose Ontiveros Jr. filed a Motion to Strike Plaintiff’s FAC. No
opposition has been filed.
MEET AND CONFER
California Code of Civil Procedure section
435.5 requires that, before filing a motion to strike, the moving party shall
meet and confer¿in person or by telephone¿with the party who filed the pleading
that is subject of the motion for the purpose of determining whether an
agreement can be reached that would resolve the objections to be raised. The
parties are to meet and confer at least five days before the date the
responsive pleading is due. (Code Civ. Proc., § 435.5, subd. (a)(2).)
The party must also file and serve a declaration detailing the meet and confer
efforts. (Code Civ. Proc., § 435.5, subd. (a)(3).)
Legal Standard
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. (Code of Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)
The meet and confer
requirement has been met. (Vaqar Decl. ¶ 3.)
Request for Judicial Notice
Defendant’s request for
Judicial Notice is DENIED because the documents are not relevant for the
disposition of this instant matter. (Moran v.
Endres (2006) 135 Cal.App.4th 952,
954 at fn. 2.)
Discussion
On September 12, 2022, Plaintiff obtained leave of Court to file a FAC. (Min. Or. 09/12.22.) Plaintiff was ordered to file her FAC within five days. (Min. Or. 09/16/22.) Plaintiff filed the FAC on September 30, 2022 beyond the five days allotted by the Court.
Defendant now
moves to Strike Plaintiff’s FAC on the basis that it was not timely filed by
the five-day deadline and because the FAC complaint that was ultimately filed
was different from the Proposed FAC which was the basis for this Court’s granting
leave to file. (Vaquar Decl. ¶ 5.)
Specifically, Defendant asks the Court to compare the filed FAC ¶¶ at 2, 18-23, 29-31, 50, 79, 81 and prayer at 1, 4, with FAC that Plaintiff proposed to file at ¶¶ 2, 18-23, 29-31, 50, 79, 81 and prayer at 1, 4.
The Court agrees that the filed FAC is not the same FAC that
Plaintiff proposed in her motion for leave to amend and is not the FAC that
this Court granted Plaintiff leave to file. This alone merits granting Defendant’s
request.
Moreover, Plaintiff failed to timely file the FAC. “[P]laintiffs' failure to file an amended complaint within the time allowed by the court subjected any subsequently filed pleading to a motion to strike, either by defendants or on the court's own motion. We have expressly recognized a trial court's authority to strike pleadings ‘not filed in conformity with its prior ruling.’” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.)
Plaintiff has failed to oppose Defendant’s motion or explain the untimeliness of the filing and why it is different that the proposed FAC. “Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) As Plaintiff has not opposed, she has not met her burden to demonstrate that the pleading can be amended.
Conclusion
Defendant’s Motion to Strike is GRANTED without leave to amend.
Moving party to give notice.