Fitzgerald Et Al Vs. St. Clair Et Al

Please use Case Management Search for Tentative Ruling(s).

Matter on the Law & Motion Calendar for Thursday, July 18, 2024, Line 7. 1 - DEFENDANT RIPPLE LABS INC.'s DEMURRER to Amended COMPLAINT. Defendant Ripple Labs Inc.'s demurrer is ordered off calendar, due to the ruling on defendant Christian Larsen's companion demurrer. Ripple may re-file once the stay has been lifted. =(302/CK)

AL. Case Number: 22CV-0201012 This matter is on calendar for review regarding status of judgment/dismissal. A Notice of Settlement was filed on April 15, 2024 which indicates that the case would be dismissed within 45 days. No dismissal is on file. The Court intends to dismiss this case pursuant to California Rule of Court 3.1385(b) unless the parties appear at today’s hearing and show good cause why the case should not be dismissed.

SMITH VS. BRIDGEWAY INN & SUITES, ET AL. Case Number: 23CV-0203137 Tentative Ruling on Order to Show Cause Re Sanctions: An Order to Show Cause Re: Sanctions (“OSC”) issued on May 29, 2024, to Plaintiffs and Counsel for their failure to appear at the Mandatory Settlement Conference on May 28, 2024. No response to the OSC has been filed. The Court notes a Declaration of Ilan Rosen Janfaza was filed on May 28, 2024, which indicates the matter is not at issue. However, it does not address Plaintiffs and Counsel’s failure to appear at the Mandatory Settlement Conference. Sanctions will be imposed in the amount of $250. The clerk is instructed to prepare a separate Order of Sanctions. The Court confirms hearing of the Order to Show Cause Re: Dismissal set for Monday, September 9, 2024, at 8:30 a.m. in Department 64.

Case Number: 22STCV39957 Hearing Date: July 18, 2024 Dept: 54 Superior Court of California County of Los Angeles Rodolfo Garcia-Rosas, and Alma Delia Llamas Plaintiff, Case No.: 22STCV39957 vs. Tentative Ruling Architectural Surfaces, Inc., et al., Defendants. Hearing Date: July 18, 2024 Department 54, Judge Maurice Leiter Motion to Strike Portions of Plaintiffs First Amended Complaint Moving Party : Defendant Caesarstone Ltd. Responding Party : Plaintiffs Rodolfo Garcia-Rosas and Alma Delia Llamas T/R : DEFENDANTS motion to strike is granted in part, denied in part DEFENDANT TO NOTICE. If the parties wish to submit on the tentative, please email the courtroom at¿ SMCdept54@lacourt.org ¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. The Court considers the moving papers, opposition and reply. Plaintiff also filed a Supplemental Opposition on July 5, 2024. BACKGROUND On March 13, 2023, Plaintiffs Rodolfo Garcia-Rosas and Alma Delia Llamas filed the operative first amended complaint against Defendants Architectural Surfaces, Inc., et al., asserting causes of action for (1) negligence; (2) strict liability warning defect; (3) strict liability design defect; (4) fraudulent concealment; (5) breach of implied warranties; and (6) loss of consortium. Plaintiff Garcia-Rosas alleges he developed silicosis and consequential injuries through his employment working with stone products manufactured, distributed, and/or supplied by Defendants. ANALYSIS Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part" of that pleading. (CCP § 435(b)(1).) 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 asserted 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." (CCP § 436.) A. FAC: Page 7, Line 3 Defendant Ceasarstone requests that the Court strike and other stone products to be identified during the course of discovery because Defendant argues that it is a catchall product identification that violates Bockrath v. Aldrich Chemical Company , Inc. (1999) 21 Cal. 4th 71. Defendant argues that this catchall provision is not specific enough to meet Bockraths standard for toxic tort pleading because Bockrath requires that a plaintiff plead each product that allegedly caused the injury. ( Id . at pg. 80.) Defendant is correct. Plaintiffs must specify the products; this clause does not comply with the standard. The Court grants the motion to strike page seven (7), line 3. B. FAC ¶ 362, ¶ 378, and ¶ 455; Punitive Damages Defendant moves to strike paragraphs 362, 378, 455, and prayer for relief number 4, all of which pertain to punitive damages, claiming that the Complaint does not allege an adequate basis for punitive damages. Civil Code section 3294 subdivision (a) provides: In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (Civ. Code § 3294(b).) Defendant contends that the Complaint does not adequately allege a basis for punitive damages because it does not allege malice, oppression, or fraud in sufficient detail as to this Defendant, nor does it allege ratification. The elements of a cause of action for fraud based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. ( Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1198.) Here, Plaintiffs allege that: Plaintiffs allegations are sufficient to allege a fraudulent concealment claim. ( Jones, supra , 198 Cal.App.4th at 1195 [plaintiffs complaint is not unacceptably speculative if a plaintiff has not specifically identified which toxin contained in a particular product caused the alleged injury or has sued the manufacturers of multiple products, alleging all of them contained toxins that were substantial factors in causing his injury.) As the California Supreme Court stated in Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, the remedy for an improperly speculative pleading is provided by Code of Civil Procedure § 128.7(b), which permits the imposition of sanctions on an attorney who is found to have deliberately filed a products liability suit without a well-founded belief in the truth of a particular allegation. ( Bockrath, supra, 21 Cal. 4th at p. 82; see also Jones, supra , 198 Cal.App.4th at 1196.) As Plaintiffs have adequately alleged a claim for fraud, they are entitled to seek punitive damages. The Court denies this portion of the motion. Superior Court of California County of Los Angeles Rodolfo Garcia-Rosas, and Alma Delia Llamas. Plaintiffs, Case No.: 22STCV39957 vs. Tentative Ruling Architectural Surfaces, Inc., et al. Defendants. Hearing Date: July 18, 2024 Department 54, Judge Maurice A. Leiter Motion to Quash Service of Summons Moving Party : Specially Appearing Defendant Cosentino Group, S.A. Responding Party : Plaintiffs Rodolfo Garcia Rosas and Alma Delia Llamas T/R : SPECIALLY-APPEARING DEFENDANTS MOTION TO QUASH SERVICE OF SUMMONS IS GRANTED. DEFENDANT TO NOTICE. If the parties wish to submit on the tentative, please email the courtroom at¿ SMCdept54@lacourt.org ¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. The Court considers the moving papers, opposition, and reply, as well as the supplemental briefing. BACKGROUND On March 13, 2023, Plaintiffs Rodolfo Garcia-Rosas and Alma Delia Llamas (collectively Plaintiffs) filed the first amended complaint against Defendants Architectural Surfaces, Inc., et al., asserting causes of action for (1) negligence; (2) strict liabilitywarning defect; (3) strict liabilitydesign defect; (4) fraudulent concealment; (5) breach of implied warranties; and (6) loss of consortium. Plaintiff Garcia-Rosas alleges he developed silicosis and consequential injuries through his employment working with stone products manufactured, distributed, and/or supplied by Defendants. Specially Appearing Defendant Cosentino Group, S.A. moves to quash service of the summons and complaint for defective service or lack of personal jurisdiction. EVIDENTIARY MATTERS Specially Appearing Defendant Cosentinos Evidentiary Objections Specially Appearing (SA) Defendant objects to Plaintiffs exhibits attached to the Declaration of Raphael Metzger in opposition to this motion. Objections 1-26 are sustained due to lack of authentication. Plaintiffs Evidentiary Objections Plaintiffs object to the statements in the Declaration of Jorge Cuervo Velo filed in support of Cosentinos Motion to Quash. Objections 1-4 are overruled. Plaintiffs Request for Judicial Notice Plaintiffs request that the Court take judicial notice of (A) the Hague Service Convention; (B) Canadas central authority for service under the Hague Convention; (C) the United States Central Authority under the Hague Convention; (D) Pages 7 and 8 of the Practical Handbook on the Operation of the Service Convention; and Exhibit (A) Rule 4.3 of the Supreme Court Civil Rules of British Columbia Reg. 168/2009. Plaintiffs Requests are GRANTED pursuant to Evidence Code § 452(f) (law of organization of nations and foreign nations). ANALYSIS A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. (CCP § 418.10(a)(1).) When a motion to quash is properly brought, the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence. ( Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 568.) A. Service of Summons SA Defendant Cosentino seeks to quash service of the summons and complaint on the grounds that it was not served in compliance with the Hague Service Convention. Plaintiffs retained the services of Aaron Lukken of Viking Advocates LLC to arrange for service of process on one of SA Cosentinos executives, Eduardo Cosentino, in Vancouver, B.C. (Dowse Decl., Ex. 3, ¶¶ 2-3.) Lukken then retained the services of Axis Vero Inc., a private investigation firm based in Canada, to effect service in Canada. ( Id . at ¶¶ 1-2.) Axiss process server, Vladimir Raiman, presented the documents to Eduardo Cosentino at an opening event in Vancouver, Canada on September 13, 2023. ( Id. at ¶¶ 3, 7-9.) Plaintiffs filed an affidavit on behalf of Raiman on September 25, 2023, attesting to service on SA Defendant Cosentino. SA Defendant argues that service was improper because SA Cosentino is a Spanish corporation and Eduardo Cosentino is a Spanish national. SA Defendant argues that service would have been proper in Spain pursuant to the Hague Convention but was improper in Canada. Service of process here is governed by the Hague Convention. Article 10 states: Provided the State of destination does not object, the present Convention shall not interfere with a) the freedom to send judicial documents, by postal channels, directly to persons abroad, b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination, c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination. (Hague Service Convention, art. 10.) The text of the Hague Convention does not define State of destination. The Hague Conference on Private International Law Permanent Bureau has published a Practical Handbook on the convention, which defines State of destination as the State where service is, or will be, effected. (RJN Exh. D.) Article 10 does not concern who may be served, but who may effectuate service. It provides that if service complies with the law of the state from which the documents originate (California), and the law of the jurisdiction where service is attempted (Canada), and neither state has objected to Article 10, service is proper. There is no evidence that either California or Canada has objected to Article 10. Plaintiffs may serve documents pursuant to CCP § 414.10, and Raiman is authorized to effect service in Canada. (See Dowse Decl., Ex. 3, ¶1.) California law authorizes a corporation to be served by delivering a copy of the summons and complaint to the president, CEO, or other head of corporation or person authorized to receive service. (CCP § 416.10(b).) Rule 4.3 of the Supreme Court Civil Rules of British Columbia Regulations authorizes personal service to be effectuated on a corporation by leaving a copy with a chief officer or other agent of the corporation. (Supreme Ct. Civ. R. B.C. Reg 168/2009 Rule 4.3(2)(b)(i)-(iii).) When a corporations principal place of business is outside of Canada, any person who carries out business for the corporation is considered an agent. ( Id . subd. (2)(b)(iv).) Eduardo Cosentino was properly served because (1) he is SA Cosentinos Vice President who (2) was present in Canada for business on behalf of SA Cosentino, and (3) was served in compliance with the laws of both California and British Columbia. Service of the summons and complaint cannot be quashed on this basis. B. Personal Jurisdiction A non-resident defendant may be subject to either general or specific jurisdiction. (See Elkman v. National States Insurance Co. (2009) 173 Cal.App.4th 1305, 1314.) General jurisdiction exists when a defendant is domiciled in the forum state or his activities there are substantial, continuous, and systematic. ( F. Hoffman-La Roche, Inc. v. Sup. Ct. (2005) 130 Cal.App.4th 782, 796.) Specific jurisdiction involves a three-part test in California. California courts adopt the test in Boschetto v. Hansing (9th Cir. Cal. 2008) 539 F.3d 1011,1016: (1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or results from the defendant's forum-related activities; and (3) exercise of jurisdiction must be reasonable. Panavision International, L.P. v. Toeppen (9th Cir. 1998) 141 F.3d 1316, 1320 [applying California law].). ( Jewish Defense Organization, Inc. v. Sup. Ct. of Los Angeles County (Rambam) (1999) 72 Cal.App.4th 1045, 1054.) The parties agree that the Court does not have general jurisdiction over SA Cosentino. Plaintiffs must demonstrate this Court has specific personal jurisdiction over SA Defendant. SA Defendant argues that it did not purposefully avail itself of conducting activities in California. They argue that purposeful availment in tort cases requires (1) intentional actions, (2) expressly aimed at the forum state, (3) causing harm, the brunt of which is sufferedand which the defendant knows is likely to be sufferedin the forum state. ( Jewish Defense Organization , Inc. , supra, 72 Cal.App.4th at 1057-59.) Vice President for Legal and Compliance, Jorge Vela, states that SA Defendant is headquartered in Spain, organized under Spanish law, and operates exclusively in Spain. (Declaration of Jorge Cuervo Vela ¶4.) Vela states that SA Defendant has never conducted any business in California and, as a holding company, does not develop, design, manufacture, distribute, sell, advertise, or market any products. ( Id. ¶¶ 5-6.) According to Vela, the company responsible for marketing and selling the products at issue in this case is C & C North America, Inc., an indirect subsidiary of SA Defendant that keeps its own accounts and records, and pays and manages its own employees. ( Id. ¶¶ 7-8.) In response, Plaintiffs sought to introduce exhibits of materials evidencing SA Defendants activities in California, such as website pages and an address in Los Angeles. But Plaintiffs have not established the authenticity of these exhibits. They are not sufficient to establish that SA Defendant is an alter ego corporation such that it should be subject to the specific jurisdiction of this Court. At the original argument on this motion, on June 3, 2024, the Court gave Plaintiffs the opportunity to file a supplemental opposition and allowed SA Defendant to file a supplemental reply. On June 21, 2024, Plaintiffs filed their Further Supplemental Opposition, containing a short memorandum, another Declaration of Raphael Metzger (Supp. Metzger Decl.), and Exhibits A-C which respectively are (A) the deposition transcription of Jose Cuervo Vela regarding lack of personal jurisdiction, (B) a true and correct copy of the trademark registration for SA Defendants Silestone product that Plaintiffs allege caused his silicosis; and (C) a true and correct copy of a photo from the Cosentino website of the building in Los Angeles that is called Cosentino City of Los Angeles which bears both the Cosentino wordmark and the Silestone wordmark. But Velas testimony is that the trademark registrations have never been held by SA Cosentino. And the case Plaintiffs cite to contend that trademark registration is sufficient to establish personal jurisdiction in any state does not itself discuss personal jurisdiction. (See generally, Kasel v. Remington Arms Co . (1972) 24 Cal.App.3d 711, 721.) Plaintiffs have not met their evidentiary burden to demonstrate that SA Defendant purposefully availed itself of the benefits of doing business in California. Service of the Summons and Complaint must be quashed.

Case Number: 19SMCV01966 Hearing Date: July 18, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE July 18, 2024 CASE NUMBER 19SMCV01966 MOTION Continue Trial MOVING PARTY Defendant Gilberto Rios dba Betos Drywall & Plaster Interior Finishes OPPOSING PARTY none BACKGROUND Plaintiffs Michael Levine and Zorbey Ozdilek (Plaintiffs) filed the operative Fourth Amended Complaint on June 30, 2022 against Defendants Montalba Architects, Inc.; David Desire Montalba, AIA; Jonathan Eric Handzo, AIA; Denver Thomas Dale IV; Temperature Equipment Corporation; Sure Light Electric, Inc.; Fabie Tile & Marble, Inc.; Folger Roofing & Construction Company, Inc.; Heritage Woodworks, Inc.; L.A. Overhead Door, Inc.; PBS Engineers, Inc. (fka Doe 1); WMW, Inc. dba Weather Masters Waterproofing (fka Doe 2); Rapid Duct Testing & Air Balancing, Inc. (fka Doe 3); Ben McDonald (fka Doe 4); Michael Knopoff (fka Doe 5); David Trumbull dba Sure Light Electric (fka Doe 6); Gilberto Rios dba Betos Drywall & Plaster Interior Finishes (fka Roe 1); E&J Lopez Plumbing, Inc. (fka Roe 2); and M&F Hardwood Floors, Inc. (fka Roe 3) alleging eleven causes of action for (1) professional negligence; (2) breach of contract; (3) breach of the implied covenant of good faith and fair dealing; (4) breach of the implied covenant to perform work in a good and competent manner; (5) breach of fiduciary duty; (6) aiding and abetting breach of fiduciary duty; (7) fraud and deceit; (8) aiding and abetting fraud and deceit; (9) negligence; (10) conversion; and (11) violation of Business & Professions Code §§ 17200 et seq. Several cross-complaints have been filed, including one by Denver Thomas Dale, IV, which also names Defendant Gilberto Rios dba Betos Drywall & Plaster Interior Finishes (Betos). As the Court noted at the last status conference on May 30, although Betos has answered this cross-complaint, Betos has not yet filed an answer to Plaintiffs operative Fourth Amended Complaint. Betos now moves for a short continuance of the September 3, 2024 trial date to sometime on or after October 21, 2024 because counsel is out of the country when the current trial is set. Betos motion is unopposed. ANALYSIS Trial and Discovery Cut-Off Dates California Rules of Court, rule 3.1332(c), provides: Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability of a party because of death, illness, or other excusable circumstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case; (6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. Factors the Court considers in ruling on a motion for continuance include: (1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circumstance relevant to the fair determination of the motion or application. (Cal. Rules of Court, rule 3.1332(d).) Betos requests a trial continuance because Betos counsel purchased tickets for an overseas trip in December 2023 which would take us out of the country for the first three weeks of September. (Wilton Decl. ¶ 6.) This was before the February 2, 2024 status conference where the Court set the trial date for September 3. Counsel advised the Court at the status conference of his unavailability for trial on September 3 due to his preplanned vacation, but the Court set the trial date anyway. The Court finds that Betos has not provided any legal basis demonstrating that counsels vacation constitutes other excusable circumstances warranting a continuance under Rule 3.1332(c)(3). The Court also finds it concerning that counsel has still not filed an answer on behalf of Betos when the parties are so close to trial, despite being alerted by the Court of this issue on May 30. With regard to the factors the Court considers when determining whether a continuance is warranted, Betos concedes that the trial is imminent, and that there have been previous continuances due to the large number of parties and cross-complaints at issue. The Court also notes that this case is extremely aged, with the original complaint having been filed on November 8, 2019, meaning that the parties are running up against the five-year rule, and the Courts trial calendar is very impacted. The Court further notes that although no party has opposed the motion, the requested continuance was not presented as a stipulation. Moreover, counsel declares, Discovery to date has shown Betos Drywall to be a peripheral party at best with minimal accusations of wrongdoing against him. (Wilton Decl. ¶ 7.) As such, in the absence of a stipulation, without other excusable circumstances or other good cause shown , and in view of Betos lack of diligence in filing an answer to the operative complaint, the Court does not find a trial continuance is warranted to accommodate the vacation of counsel to a peripheral party in such a complex and aged action. CONCLUSION AND ORDER Therefore, the Court denies Betos unopposed motion to continue the trial without prejudice. Betos shall provide notice of the Courts ruling and file the notice with a proof of service forthwith. DATED: July 18, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court

Matter on the Law & Motion calendar for Monday, July 22, 2024, Line 2. 2 - DEFENDANT RUBY TANG's Motion For Sanctions And Compensation Against Taghi Astanehe, Anh L. Truong And Anh L. Troung Pursuant Ccp 128.5, 128.7 And 1033.5. Denied. The motion appears to seek sanctions against a person who is no longer a party to the case, and the person's counsel. The other motion brought by Ms. Tang today, that relating to sealing, states that the entire case was dismissed February 21, 2024. None of the grounds alleged is shown to be frivolous within the meaning of the statutes invoked, i.e., CCP sections 128.5, 128.7. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/CK)

Case Number: 22STCV28564 Hearing Date: July 18, 2024 Dept: 26 07/18/24 Dept. 26 Rolf Treu, Judge presiding Christina Development Corporation v. Steven Raymond Short et al. ( 22STCV28564 ) Counsel for Plaintiff/opposing party: Steve Short, in Pro Per Counsel for Defendants/moving party: Debra Ellwood Meppen and Raymond L. Gill MOTION TO STRIKE LATE AMENDMENTS TO COMPLAINT OR ALTERNATIVELY NOTICE AND STATEMENT OF DEMURRER TO PLAINTIFF STEVE SHORTS THIRD AMENDED COMPLAINT ( filed 02/23/24) (amended notice filed on 03/08/24) TENTATIVE RULING The Motion To Strike Third Amended Complaint is granted. Demurrer is moot. I. BACKGROUND On September 1, 2022, Plaintiff Christina Development Corporation filed the complaint against Defendants Steve Raymond Short and Does 1 through 10 (collectively Defendants). The complaint alleges (1) tortious interference with contractual relations; (2) defamation; (3) civil harassment; (4) conversion; and (5) breach of contract. On January 18, 2023, Plaintiff Steve Short filed the case entitled Steve Short v. Christina Development Corporation; Christina Properties Limited, et al. Los Angeles Superior Court, Case No. 23VECV00203 for Labor Code violations against CDC, Christina Properties Limited, G&A Partners, LTD, David Allen Whitehead, Lawrence Norman Taylor, Adam Jacob Rosenkranz, Vincent Chan, Connor Stephen Wilks, JW Associates, LLC, Empire View Homes, LLC, and Crescent Hill Lofts, LLC. On March 10, 2023, Christina Development Corporation filed a notice of related cases with the case entitled Steve Short v. Christina Development Corporation; Christina Properties Limited, et al. Los Angeles Superior Court, Case No. 23VECV00203. On March 29, 2023, the Court found the two cases related and set an Order to Show Cause as to why the cases should not be consolidated. (Minute Order 3/29/23.) On April 20, 2023, the Court consolidated the two actions for all purposes. (Minute Order 4/20/23.) On May 16, 2023, Plaintiff Steve Short filed his First Amended Complaint. On June 12, 2023, Plaintiff Steve Short filed his Second Amended Complaint. On January 22, 2024, Plaintiff Steve Short filed an Amended Third Complaint. On June 5, 2024, Defendants filed a notice of non-opposition to its Motion to Strike Late Amendments to Complaint or Alternatively Notice And Statement of Demurrer to Plaintiff Steve Shorts Third Amended Complaint. On March 8, 2024, Defendants filed the instant Motion, arguing that: · Plaintiffs amendments were untimely. · Plaintiffs Third Amended Complaint is insufficiently pled breach of contract, harassment, retaliation, hostile work environment, not paying overtime, and loan fraud. · Plaintiff has had four attempts at amending the Complaint. Plaintiff has not filed an opposition as of July 17, 2024. Defendants filed a notice of non-opposition on July 11, 2024. II. ANALYSIS A. Legal Standard for Demurrer with Motion to Strike Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). ( See CCP §§ 435-437.) A party may file a motion to strike in whole or in part within the time allowed to respond to a pleading, however, if a party serves and files a motion to strike without demurring to the complaint, the time to answer is extended. (CCP §§ 435(b)(1), 435(c).) A motion to strike lies only where 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 pleadings or by way of judicial notice. (CCP § 437.) Demurrer [A] demurrer tests the legal sufficiency of the allegations in a complaint. ( Lewis v. Safeway, Inc . (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co . (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. ( Aubry v. Tri-City Hosp. Dist . (1992) 2 Cal.4th 962, 967.) The question of plaintiff's ability to prove these allegations is of no concern at the pleadings stage. (See Committee on Childrens Television, Inc. v. General Foods Corp ., (1983) 35 Cal.3d 197, 213-214. [It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct.]) Meet and Confer Before filing a demurrer&the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a); see also CCP § 435.5 (imposing similar requirements for a motion to strike).) Code of Civil Procedure section 435.5, subdivision (a) 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 would resolve the objections to be raised in the motion to strike. The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension.¿ (Code Civ. Proc., § 435.5(a)(2).)¿ The moving party must also file and serve a declaration detailing the meet and confer efforts.¿ ( Id .¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a motion to strike may be filed to the amended pleading.¿ ( Id .¿at (a).)¿ Here, Moving Defendants sufficiently met and conferred. (Princi Decl. ¶ 8, Exh. B.) 1. Evidence in Support of the Motion Motion to Strike On December 14, 2023, the Court sustained Defendants demurrer to the six causes of action which are the subject of the instant demurrer, with leave to amend (the Demurrer Order). (Gill Decl. ¶ 5, Exhibit B.) The Court ordered Plaintiff to file and serve his Third Amended Complaint (TAC) by January 15, 2024, but Plaintiff filed his TAC seven days late on January 22, 2024. (Gill Decl. ¶ 5, Exhibits C & D.) Therefore, Plaintiffs TAC is untimely and should be stricken under Rule 3.1320(i) of the California Rules of Court. Thus, the Motion to Strike is granted. Demurrer The demurrer is moot since the Motion to Strike was granted. 2. Evidence in Opposition to the Motion None. III. DISPOSITION Based on the foregoing, the Court GRANTS the Motion To Strike Third Amended Complaint. Demurrer is moot.