Motion to Strike Initial Pleading in CALLAN REALTY VS. WILLI'S COFFEE & FLOWERS LLC ET AL| Trellis.Law

On October 05, 2021 a Hearing was filed involving a dispute between Callan Iii, Thomas J., Callan Realty, Desler, Brian, Desler, Jennifer Callan, and Does 1 To 10, Inclusive, Willi'S Coffee & Flowers Llc, Willi'S Coffee & Flowers Llc Dba Lillie Coit'S, for UNLAWFUL DETAINER - COMMERCIAL in the District Court of San Francisco County.

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l K. Christopher Branch (SBN 134876)
THE KC BRANCH FIRM, PC
2 860OsosSt#I0 ELECTRONICALLY
San Luis Obispo California 93401
3 (805) 539-1700 (0) F I L E D
Superior Court of California,
(805) 539-170 I (F) County of San Francisco
4
02/25/2022
Clerk of the Court
5 Attorney for Willi's Coffee & Flowers, LLC dba Lilli Coit's, Defendant BY: EDWARD SANTOS
Deputy Clerk

6
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
IN AND FOR THE COUNTY OF SAN FRANCISCO
9
10 CALLAN REALTY, )) CASE NO: CUD-21-668196
)
11 )
Plaintiff ) NOTICE OF MOTION AND MOTION TO
12 ) STRIKE AMENDED COMPLAINT OF
) CALLAN REALTY BY DEFENDANT
13 V. )) WILLI'S COFFEE & FLOWERS, LLC;
) MEMORANDUM OF POINTS AND
14 ) AUTHORITIES; [PROPOSED] ORDER 0
WILLI'S COFFEE & FLOWERS, LLC dba ) MOTION TO STRIKE
15 LILLIE COIT'S, and DOES 1 to 10 Inclusive; )
) Code of Civil Procedure Sections
16 ) Date: March 18, 2022, 9:30 AM,
Defendants ) Loe: Dept 501, Superior Court of San
17 ) Francisco, 400 McAllister St, San
) Francisco, CA 94102
18 ) Judge: Hon. Charles F. Haines

22 TO THE COURT HEREIN, ALL INTERESTED PARTIES AND TO THEIR

23 RESPECTIVE ATTORNEY OF RECORD:

24 PLEASE TAKE NOTICE THAT on March 18, 2022 at 9:30 a.m., or as soon thereafter as

25 the matter may be heard, in Department 501 of the Superior Comi of California, County of San

26 Francisco located-at 400 McAllister Street, San Francisco, CA 94102, Defendant Willi's Coffee

27 & Flowers LLC dba Lillie Coit's (hereinafter "Defendant") will and hereby does move for an

28 order striking the Amended Complaint (hereinafter the "Complaint") filed by Plaintiff pursuant

Motion to Strike Amended Complaint of Callan Realty by Defendant Willi's Coffee & Flowers LLC
Callan Realty v. Willi's Coffee & Flowers etc et al, SFS # CUD-21-668196
1
to Code of Civil Procedure Sections 435-437, and California Rules of Court, Rule 3 .1322, for

2 failure to amend the complaint in accord with the order of the court on demurrer.

3 As Defendant seeks to strike the entire Complaint, it is not required to set forth the text of

4 the Complaint pursuant to CRCR 3 .1322.

5 This motion is based on this notice, the attached memorandum of points and authorities,

6 and upon such other matters, evidence, and argument that the Court may consider in adjudicating

7 this motion.

8 Respectfully s u b m i t t e ~/ /
9 Februaryl7,2022 ~
10 K. Christopher Branch, Esq.

11 The KC Branch Firm PC

12 Attorneys for Defendant Willi's Coffee and Flowers dba Lillie Coit's

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21

22
23

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27

Motion to Strike Amended Complaint of Callan Realty by Defendant Willi's Coffee & Flowers LLC
Callan Realty v. Willi's Coffee & Flowers etc et al, SFS # CUD-21-668196
2
MEMORANDUM OF POINTS AND AUTHORITIES

2 I. FACTUAL BACKGROUND

3 Plaintiff filed its original complaint on October 5, 2021. Defendant demun-ed to the

4 complaint, which demurrer was sustained in part. A tentative order issued in which demurrer

5 was sustained in part, with leave to amend granted so that the Plaintiff might clarify its alleged

6 ownership, allege who actually signed the lease, and allege compliance with fictitious business

7 name requirements as applicable. The parties submitted to the tentative. On January 20, 2022,

8 Plaintiff itself submitted a proposed order based on the tentative which was signed as an order

9 January 27, 2022. The order of the court, inter alia, provided: "DemmTer is sustained with leave

10 to amend for Plaintiff to clearly allege ownership (see complaint vs. opposition suggesting that

11 Plaintiff is the owner of the property); and whether the Lease was signed by the owner, the

12 Plaintiff or somebody else on Plaintiffs behalf. Plaintiff shall also allege compliance with

13 fictitious business name, if applicable."

14 On February I 0, 2022, Plaintiff filed its amended complaint (hereinafter the

15 "Complaint"), but failed to provide allegations of fact to clarify Plaintiffs ownership or fictitious

16 business name requirement compliance. Instead, without leave of court, the Plaintiff improperly

17 substitutes, or perhaps adds, its unclear, a completely different plaintiff in the body of the

18 Complaint, Gladys A. Callan, trustee of the Callan Grandchildren Trust (hereinafter Trustee

19 Callan"), attaches copies of an assignment oflease, amendment oflease, and original lease

20 apparently signed by Trustee Callan, and alleges ownership of the property in her. Plaintiff

21 dropped a copy of the Complaint through a mail slot at the office of Defendant's counsel while

22 the office was closed, without a proof of service, and without a subsequent mailing ore-service

23 received as of the date of this Motion. The Complaint was found on the morning of Tuesday,

24 February 15 2022.

25 II. ARGUMENT
26 A. LEGAL STANDARD
27 Pursuant to Code of Civil Procedure Section 436, a motion to strike may be used to

28 eliminate "all or any part of any pleading not drawn or filed in conformity with the laws of this

Motion to Strike Amended Complaint of Callan Realty by Defendant Willi's Coffee & Flowers LLC
Callan Realty v. Willi's Coffee & Flowers etc et al, SFS # CUD-21-668196
3
1 state, a court rule, or an order of the court" CCP 43 6(b)

2 A pleading filed in violation of prior court rulings may be stricken. (Leader v. Health

3 Industries ofAmerica, Inc., 89 Cal. App. 4th 603,613, 107 Cal. Rptr. 2d 489 (2d Dist. 2001);

4 CCP 436(6) Unauthorized pleadings are subject to a motion to strike. Loser v. E. R. Bacon Co.,

5 201 Cal. App. 2d 387,389, 20 Cal. Rptr. 221 (3d Dist. 1962) [ amended pleading filed without

6 leave]) A motion to strike is also proper when a party has failed to verify, or properly verify, a

7 pleading when required to do so. (Perlman v. Municipal Court, 99 Cal. App. 3d 568, 574, 160

8 Cal. Rptr. 567 (2d Dist. 1979))

9 The Complaint should be struck in its entirety because it is drawn in contravention of a

10 court order, making no effort to comply with the order on demurrer, attempts, without right or

11 authority, to substitute a completely different plaintiff without leave of court, resulting in a

12 Complaint which remains deficient as recognized by the order on demurrer, and which provides

13 no allegations of fact in support of the only plaintiff, Callan Realty (hereinafter the "Plaintiff).

14 The Complaint is also not verified by or on behalf of Plaintiff Callan Realty, and may be struck.

15 B. Plaintiff Lacked Authority to Amend the Complaint As It Did

16 A plaintiff may only amend the complaint as a matter of course before an answer

17 or demurrer is filed or before trial of the issue of law raised in the demmTer; at that point, the

18 plaintiffs right to amend as a matter of course is gone. Leader v. Health Industries ofAmerica,

19 Inc. (App. 2 Dist. 2001) 107 Cal.Rptr.2d 489, 89 Cal.App.4th 603

20 The order on demurrer granted Plaintiff leave to clarify its ownership status, clarify the

21 alleged signatory to the lease, and to address fictitious business name requirements. Plaintiff

22 failed to so amend the complaint. Instead, Plaintiff attempted to substitute a new plaintiff,

23 without leave, and otherwise failed to address its obligations under the order. The Complaint is

24 therefore filed in violation of a prior comi ruling (Leader v. Health Industries ofAmerica, Inc.,

25 89 Cal. App. 4th 603,613, 107 Cal. Rptr. 2d 489 (2d Dist. 2001); CCP 436(b) and an

26 unauthorized pleading Loser v. E. R. Bacon Co., 201 Cal. App. 2d 387,389, 20 Cal. Rptr. 221

27 (3d Dist. 1962) and subject to a motion to strike.

28 Plaintiff failed to request leave to substitute or add a new plaintiff. The substitution is

Motion to Strike Amended Complaint of Callan Realty by Defendant Willi's Coffee & Flowers LLC
Callan Realty v. Willi's Coffee & Flowers etc et al, SFS # CUD-21-668196
4
1 invalid. Only Plaintiff Callan Realty remains as a valid plaintiff. Hence, the entire redrawn

2 complaint relates to an entirely different person/entity, and does not support a cause of action in

3 the Plaintiff.

4 C. Failure to Amend Within the Time Pennitted, Allows the Complaint to be Struck

5 Plaintiff filed an amended complaint, thereby ending its opportunity to amend

6 pursuant to the order on demurrer. The Complaint was not amended in accord with the order,

7 and was filed without leave for those amendments, including the substitution/addition of a new

8 plaintiff.

9 Plaintiffs failure to filea complaint amended in accord with the order on

10 demurrer within the time allowed by the court after the sustaining of defendant's demurrer with

11 leave to amend subjected any subsequently filed pleading to a motion to strike, either by

12 defendants or on the court's own motion. C.C.P. §§ 436, 473(a)(l)

13 By virtue of its inherent power to prevent abuse of its processes, a trial court may strike

14 an amended complaint filed in disregard of established procedural processes, and may strike an

15 amended pleading because no request for permission to amend was sought. C.C.P. § 473(a)(l)

16 CONCLUSION

17 Plaintiff failed to amend its complaint in accord with the order on demurrer, and instead

18 filed a complaint amended without regard to the order on demurrer, though it ironically

19 references that order in the unreferenced/ unincorporated Attachment 17 to the Complaint. The

20 Complaint is not in accord with the order on demmTer. Having been amended outside of the

21 scope of the order on demurrer, it is an unauthorized pleading as well as not in accord with the

22 order, and its own filing having ended the opportunity to file a pleading amended in accord with

23 the order on demurrer, it is eligible to be struck as a whole. For the foregoing reasons,

24 Defendant requests that the Complaint be struck. _

25 Respectfully submitted: / /_,.,,/..,-

26 Februa1y 17, 2022 ----,-''---:"-/_/---f---r/
_ _ _ _ _ _ __
K Clrrist er Branch, Esq.
27 t--'Fne KC Branch Finn PC
Attorneys for Defendant Willi's Coffee and Flowers dba Lillie Coit's
28

Motion to Strike Amended Complaint of Callan Realty by Defendant Willi's Coffee & Flowers LLC
Callan Realty v. Willi's Coffee & Flowers etc et al, SFS # CUD-21-668196
5
PROOF OF SERVICE (C.C.P. Section 1013(a)

2 ST ATE OF CALIFORNIA )
) ss
3 COUNTY OF LOS ANGELES )

4 I am employed in the county of Los Angeles, State of California. I am over the age
of 18 and not a party to the within action. My business address is: 860 Osos St #10
5 San Luis Obispo California 9340 I

6 On Febmary 18, 2022, I served the foregoing documents described as

7 NOTICE OF MOTION AND MOTION TO STRIKE AMENDED COMPLAINT OF
CALLAN REALTY BY DEFENDANT WILLI'S COFFEE & FLOWERS, LLC;
8 MEMORANDUM OF POINTS AND AUTHORITIES; [PROPOSED] ORDER ON MOTION
TO STRIKE
9
on interested parties in this action by having a true copy thereof sealed in an envelope addressed
10 as follows:

Il
Daniel Bornstein Attorney for Plaintiff Callan Realty
Bornstein Law
12
507 Polk Street, Suite 310
San Francisco, CA 94102-3396
13

14
(X ) BY MAIL, I caused such envelope with postage thereon fully prepaid to be placed in
15
the United States Mail at Pasadena, California.
16
( ) BY FAX, I caused such documents to be faxed from facsimile number , and no
error was reported in such transmission.
17
(X ) BY EMAIL, I caused such document to be delivered by email to
18
in accord with California Judicial Council Emergency Rule 12, having first verified email
with opposing counsel:
19

20 I am an active member of the State Bar of California and not a party to the action.
I declare under the penalty of perjury under the laws of the State of California that
the above is true and correct.
21

22 Executed on February 18, 2022 at Pasadena, C a l i ~ / / , /

23
/Kt'

Case Info

Judge

Charles F. Haines Track Judge’s New Case

Case No.

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Document Filed Date

February 25, 2022

Case Filing Date

October 05, 2021

County

Parties

BORNSTEIN, DANIEL M Attorney for the Plaintiff
BRANCH, K. CHRISTOPHER Attorney for the Defendant
CALLAN III, THOMAS J. Plaintiff
CALLAN REALTY Plaintiff
DESLER, BRIAN Plaintiff
DESLER, JENNIFER CALLAN Plaintiff
DOES 1 TO 10, INCLUSIVE Defendant
QUETEL, KATHRYN Attorney for the Plaintiff
WILLI'S COFFEE & FLOWERS LLC Defendant
WILLI'S COFFEE & FLOWERS LLC DBA LILLIE COIT'S Defendant
Dylan Tong Attorneys for Plaintiffs

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Hearing: CALLAN REALTY VS. WILLI'S COFFEE & FLOWERS LLC ET AL

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