800 CARSON MANAGEMENT VS DUSTIN NOWICK DBA AWAKENINGS

Tentative Rulings

Case Number: 20CMUD00076    Hearing Date: January 21, 2021    Dept: A

# 9. 800 Carson Management v. Dustin Nowick dba Awakenings

Case No.: 20CMUD00076

Matter on calendar for: Demurrer to Plaintiff’s Second Amended Complaint; Motion to Strike Plaintiff’s Second Amended Complaint

Tentative ruling:

1. Background

On January 15, 2020, plaintiff 800 Carson Management filed a complaint for unlawful detainer against defendant Dustin Nowick dba Awakenings. The subject property is located at 800 West Carson Street, Unit #35, Torrance, CA 90502.

On November 16, 2020, the Court sustained Defendant’s demurrer to the first amended complaint with leave to amend. Currently before the Court are defendant’s demurrer to and motion to strike the operative second amended complaint.

1. Standard

   1. Demurrer

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.App.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (Code Civ. Proc., § 430.10, subd. (e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)

1. Motion to Strike

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 of the pleading. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, Rule 3.1322(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 the 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, subds. (a)-(b); Stafford v. Schultz (1954) 42 Cal.2d 767, 782 [“matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

1. Analysis

   1. Motion to Strike

Defendant argues that the second amended complaint should be stricken because it was filed late.

The time within which to amend runs from service of notice of the court’s order unless notice is waived in open court and entered in the minutes of the court. (Code Civ. Proc., § 472b.) Service by mail extends the time by five days. (Code Civ. Proc., § 1013, subd. (a).) After expiration of the time allowed the party must file a noticed motion seeking permission to file the amended pleading. (Leader v. Health Indus. Of America, Inc. (2001) 89 Cal.App.4th 603, 612-13.) The opposing party may file a noticed motion to strike an untimely-amended pleading. (Cal. Rules of Court, Rule 3.1320(i).)

The Court sustained defendant’s demurrer to the first amended complaint on November 16, 2020, granting plaintiff five days to amend. On November 17, 2020, defendant filed a Notice of Ruling, stating that plaintiff was served with notice of the demurrer ruling on that date, by U.S. mail. Accordingly, plaintiff had until November 30, 2020 to file an amended complaint. (See Code Civ. Proc., § 1013, subd. (a).) Plaintiff did not file its second amended complaint until December 2, 2020; plaintiff did not seek leave of court to file it.

Plaintiff argues that the late filing should be excused, pursuant to Code of Civil Procedure Section 473(b), due to inadvertence and mistake. This request would need to be made in a properly-filed request for leave to file, rather than in an opposition to defendant’s motion to strike. It cannot be considered in a motion to strike. (Code Civ. Proc., § 437.)

The Court does not reach the other arguments on the motion to strike.

1. Demurrer

The Court’s ruling on the motion to strike moots the demurrer.

1. Ruling

   The motion to strike the second amended complaint is granted. The demurrer is moot.

   Next dates:

   Notice: Defendant to give notice.