ROBERT BEST VS BROADWAY CIVIC CENTER LP, ET AL.

Tentative Rulings

Case Number: 19STLC06475    Hearing Date: October 27, 2020    Dept: 25

HEARING DATE: Tue., October 27, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Best v. Broadway Civic Center, LP et al. COMPL. FILED: 07-12-19

CASE NUMBER: 19STLC06475 DISC. C/O: 12-09-20

PROCEEDINGS: MOTION TO STRIKE PLAINTIFF’S UNTIMELY ANSWER

MOVING PARTY: Defendant in Intervention Jennifer Searle

RESP. PARTY: None

MOTION TO STRIKE

(CCP §§ 435, 436)

TENTATIVE RULING:

Defendant in Intervention Jennifer Searle’s Motion to Strike is DENIED. However, on the Court’s own motion, the answer to the cross-complaint filed by Plaintiff/Cross-Defendant on December 9, 2019 is HEREBY STRICKEN given that there is no cross-action pending at this time.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of October 23, 2020 [ ] Late [X] None

REPLY: None filed as of October 23, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On July 12, 2019, Plaintiff Robert Best (“Plaintiff”) filed an action for violation of civil rights on the basis of discrimination in public accommodations against Defendants Redwood Bar and Grill, Thirsty Pockets, LLC (“Redwood”) and Broadway Civic Center, LP (“Broadway”) (collectively, “Defendants”).

On August 13, 2019, Jennifer Searle (“Searle”) filed an answer and on September 9, 2019, she filed a cross-complaint against Plaintiff. Searle filed a motion to deem Plaintiff vexatious on September 16, 2019. On November 21, 2019, the Court found that in order to join this action, Searle was required to proceed by way of intervention. (11/21/19 Minute Order.) For this reason, the Court found Searle’s filing of an answer, cross-complaint, and motion to deem Plaintiff vexatious improper and struck her pleadings and the motion. (Id.)

On November 25, 2019, Searle filed a motion for intervention requesting to be named as a defendant. The Court granted Searle’s motion for intervention on January 16, 2020. (1/16/20 Minute Order.)

Plaintiff filed an answer to Searle’s stricken cross-complaint on December 9, 2019.

On January 30, 2020, Searle filed the instant Motion to Strike Plaintiff’s Untimely Answer (the “Motion”). No opposition has been filed.

1. Legal Standard

A motion to strike may be brought pursuant to Code of Civil Procedure section 435 and 436, which authorize a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (Code Civ. Proc., §§ 435; 436, subd. (a).) Motions to strike may also target pleadings or parts of pleadings that are not filed or drawn in conformity with applicable laws, rules or orders. (Code Civ. Proc., § 436, subd. (b).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v. Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).) However, motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the [pleading].” (Code Civ. Proc., § 92, subd. (d).)

Finally, Code of Civil Procedure section 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).)

1. Discussion

As an initial matter, the Court notes that the Motion is not accompanied by a meet and confer declaration as required by Section 435.5. In addition, motions to strike in limited jurisdiction courts are only permitted on the basis that the damages or relief sought are not supported by the allegations of the pleading. (Code Civ. Proc., § 92, subd. (d).)

Nonetheless, a Court may, at any time in its discretion, strike out all or part of a pleading not drawn in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).)

Here, the Court struck Searle’s cross-complaint on November 21, 2019. Thus, because Plaintiff’s December 9, 2019 answer was filed in response to a pleading that had previously been struck, it is responsive to nothing. For this reason, Plaintiff’s answer to the cross-complaint is HEREBY STRICKEN.

The Court notes that Searle has not filed an answer or cross-complaint since her motion for intervention was granted. There is no cross-action pending at this time.

1. Conclusion & Order

For the foregoing reasons, Defendant in Intervention Jennifer Searle’s Motion to Strike is DENIED. However, on the Court’s own motion, the answer to the cross-complaint filed by Plaintiff/Cross-Defendant on December 9, 2019 is HEREBY STRICKEN given that there is no cross-action pending at this time.

Moving party is ordered to give notice.

Case Number: 19STLC06475    Hearing Date: January 16, 2020    Dept: 94

MOTION TO INTERVENE

(CCP § 387)

TENTATIVE RULING:

Non-Party Jennifer Searle’s Motion to Intervene is CONTINUED TO MARCH 16, 2020 AT 10:30 AM IN DEPARTMENT 94.

SUMMARY OF COMPLAINT: Action for discrimination on the basis of disability.

RELIEF REQUESTED: Allow Non-Party Jennifer Searle to intervene as the owner of the Defendant Redwood Bar & Grill.

ANALYSIS:

On July 12, 2019, Plaintiff Robert Best (“Plaintiff”) filed this action for discrimination on the basis of disability against Defendants Redwood Bar & Grill, Thirsty Pockets, LLC and Broadway Civic Center, LP (“Defendant”). On August 13, 2019, Non-Party Jennifer Searle (“Searle”) filed an Answer to the Complaint alleging to be the owner of Redwood Bar & Grill. Searle alleges that she is answering as a Doe Defendant, who the Complaint alleges to be “the owners, operators, lessees or tenants of the property which is the subject of this action.” (Compl., ¶3.) The Court struck Searle’s Answer as improper. Searle now brings the instant Motion to Intervene in the action. To date, no opposition has been filed.

Legal Standard

Code of Civil Procedure section 387, subdivision (d)(1) states: “[t]he court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied:

(A) A

(B) The  is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.”

(Code Civ. Proc., § 387, subd. (d)(1).) The Court is satisfied that Searle has an interest relating to the property that is the subject of the action, namely, the Redwood Bar and Grill. However, Searle has not explained why her interest is not adequately represented by Redwood Bar and Grill. It appears to the Court that Searle is trying to defend this action in lieu of Redwood Bar and Grill, which has yet to file a responsive pleading.

Based on the foregoing, Searle’s Motion to Intervene is CONTINUED TO MARCH 16, 2020 AT 10:30 AM IN DEPARTMENT 94. At least 16 court days prior to the new hearing date, Searle is the file and serve supplemental papers addressing why her interest is not adequately represented by one or more of the existing parties, especially Redwood Bar and Grill. Failure to comply with the Court’s orders may result in the Motion to Intervene being placed off calendar or denied.

Court clerk to give notice.

Case Number: 19STLC06475    Hearing Date: November 21, 2019    Dept: 94

MOTION TO DEEM PARTY VEXATIOUS LITIGANT

(CCP § 391)

TENTATIVE RULING:

Non-Party Jennifer Searle’s Motion to Deem Plaintiff Vexatious Litigant is PLACED OFF CALENDAR.

SUMMARY OF COMPLAINT: Action for discrimination on the basis of disability.

RELIEF REQUESTED: Deem Plaintiff a vexatious litigant.

ANALYSIS:

On July 12, 2019, Plaintiff Robert Best (“Plaintiff”) filed this action for discrimination on the basis of disability against Defendants Redwood Bar & Grill, Thirsty Pockets, LLC and Broadway Civic Center, LP (“Defendant”). On August 13, 2019, Non-Party Jennifer Searle (“Searle”) filed an Answer to the Complaint alleging to be the owner of Redwood Bar & Grill. Searle alleges that she is answering as a Doe Defendant, who the Complaint alleges to be “the owners, operators, lessees or tenants of the property which is the subject of this action.” (Compl., ¶3.)

In order to join this action, Searle must proceed by way of intervention, as set forth in Code of Civil Procedure section 387. Filing an Answer, Cross-Complaint, and the instant Motion to Deem Plaintiff Vexatious as an unnamed party is improper. Accordingly, the Court strikes those filings and places the Motion off calendar. Searle may bring a motion to intervene in order to join this action.

Non-Party Jennifer Searle’s Motion to Deem Plaintiff Vexatious Litigant is PLACED OFF CALENDAR.

Court clerk to give notice.