Preview
\r \y
Stephen B. Heath - 237622
sheath@heathandvuen.com
Steven W. Yuen - 230768
syuen@heathandvuen.com
Matthew J. Kracht - 249076 F l
mkrachtafiheathandvuen.com SUCIBESJQIY?
HEATH & YUEN, APC 89$; BERcckgoo'SglA
S A N BERNAR D'NO D'STR'CT
268 Bush Street, #3006
San Francisco, CA 94104 DEC 2 8 2021
Tel: (415) 622-7004
Fax: (415) 373-3957
Attorneys for Defendant _
\OOOQCN KAL FREIGHT INC, PRO TEC INC, and KADER
ISMAIL KALIF
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF SAN BERNARDINO
11
ABDIFATAH MOHAMED ABDI, '
Case No.2 CIV SB 2123823
12 individually
DEFENDANTS KAL FREIGHT INC, PRO
13 Plaintiff, TEC INC AND KADER ISMAIL KALIF’S
REPLY BRIEF IN SUPPORT OF MOTION
14 V. TO STRIKE PLAINTIFF’S COMPLAINT
15 KAL FREIGHT, INC., a corporation; PRO TEC, Date: January 6, 2022
INC., a corporation; KADER ISMAIL KALIF, Time: 9:00 am.
16 individually; DOES 1 TO 20, Judge: Hon. Khymberli S. Apaloo
-
Dept: 825
17 Defendants.
File Date: August 16, 2021
18 Trial Date: Not Set
19
20 I. INTRODUCTION
21 Plaintiff’s opposition does not dispute that his causes of action for Negligence Per Se and
22 Punitive Damages are not actual causes of action. Defendants do not request that all of the allegations
23 contained in the complaint be stricken, only the references to these as independent causes of action.
24 Plaintiff similarly does not dispute that a Violation of Labor Code section 432 provides no remedy.
25 Accordingly, these claims are irrelevant, false, improper, or not drawn or filed in conformity with the
26 laws of this state and subject to a motion to strike.
27 ///
28 ///
-1-
DEFENDANTS’ REPLY BRIEF INSUPPORT OF MOTION TO STRIKE
II. LEGAL ARGUMENT
A. Defendants’ Motion to Strike is Timely Because Plaintiff Did Not Enter Default
“[I]t is now well established by the case law that where a pleading is belatedly filed, but at a
time when a default has not yet been taken, the plaintiff has, in effect, granted the defendant additional
time within which to plead and he is not strictly in default.” (Goddard V. Pollock (1974) 37
Cal.App.3d 137, 141, citing Reher v. Reed (1913) 166 Cal. 525, 528 [“When a party, after the time
expressly granted for filing a pleading against him has expired, suffers further time to elapse Without
\OOOQON
taking any action thereon, and in the mean time the pleading is served and filed, he, by such conduct,
in effect grants the additional tithe and the party is not strictly in default”].) Instead, “[t]he proper
10 procedure is for the plaintiff t0 move to strike the defendant’s untimely pleading .”
(mg, 37
11 Cal.App.3d at 141.)
12 Moreover, the trial court has discretion to consider an untimely pleading. (Jackson v. Doe
13 (2011) 192 Cal.App.4th 742, 749; McAllister V. County of Monterev (2007) 147 Cal.App.4th 253,
280; and Civ. Proc. Code § 473(a)(1) [“[t]he court may, in furtherance ofjustice, and on any terms as
14
may be proper enlarge the time for answer or demurrer”].) In McAllister, the appellant argued a
15
16 demurrer should have been denied, because a demurrer must be filed and served Within 30 days after
service of the complaint per section 430.40(a). (McAllister, 147 Ca1.App.4th at 279.) The McAllister
17
court rejected this argument for two reasons. First, the court noted section 430.40 is permissive, not
18
mandatory, because it uses the term “may” rather than “must” or “shall.” (m., at 280.) Second, the
19
court held “[t]here is no absolute right to have a pleading stricken for lack of timeliness in filing where
20
21 no question of jurisdiction is involved, and where, as here, the late filing was a mere irregularity
[citation]; the granting or denial of the motion is a matter which lies within the discretion of the court.”
22
23 (1Q, at 281-282.)
24 The proper remedy for a defendant’s failure to file a timely responsive pleading is to enter
25 default against that defendant. Here, plaintiff chose not to do so. He cannot now use his failure to
26 follow the appropriate procedural mechanism as a defense to a motion to strike. Case law clearly
27 indicates that a plaintiff‘s failure to take a timely default operates as an extension for a defendant to file
28 M type of responsive pleading, and not just the type of responsive pleading that a plaintiff would like.
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DEFENDANTS’ REPLY BRIEF INSUPPORT OF MOTION TO STRIKE
Preview
\r \y Stephen B. Heath - 237622 sheath@heathandvuen.com Steven W. Yuen - 230768 syuen@heathandvuen.com Matthew J. Kracht - 249076 F l mkrachtafiheathandvuen.com SUCIBESJQIY? HEATH & YUEN, APC 89$; BERcckgoo'SglA S A N BERNAR D'NO D'STR'CT 268 Bush Street, #3006 San Francisco, CA 94104 DEC 2 8 2021 Tel: (415) 622-7004 Fax: (415) 373-3957 Attorneys for Defendant _ \OOOQCN KAL FREIGHT INC, PRO TEC INC, and KADER ISMAIL KALIF SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN BERNARDINO 11 ABDIFATAH MOHAMED ABDI, ' Case No.2 CIV SB 2123823 12 individually DEFENDANTS KAL FREIGHT INC, PRO 13 Plaintiff, TEC INC AND KADER ISMAIL KALIF’S REPLY BRIEF IN SUPPORT OF MOTION 14 V. TO STRIKE PLAINTIFF’S COMPLAINT 15 KAL FREIGHT, INC., a corporation; PRO TEC, Date: January 6, 2022 INC., a corporation; KADER ISMAIL KALIF, Time: 9:00 am. 16 individually; DOES 1 TO 20, Judge: Hon. Khymberli S. Apaloo - Dept: 825 17 Defendants. File Date: August 16, 2021 18 Trial Date: Not Set 19 20 I. INTRODUCTION 21 Plaintiff’s opposition does not dispute that his causes of action for Negligence Per Se and 22 Punitive Damages are not actual causes of action. Defendants do not request that all of the allegations 23 contained in the complaint be stricken, only the references to these as independent causes of action. 24 Plaintiff similarly does not dispute that a Violation of Labor Code section 432 provides no remedy. 25 Accordingly, these claims are irrelevant, false, improper, or not drawn or filed in conformity with the 26 laws of this state and subject to a motion to strike. 27 /// 28 /// -1- DEFENDANTS’ REPLY BRIEF INSUPPORT OF MOTION TO STRIKE II. LEGAL ARGUMENT A. Defendants’ Motion to Strike is Timely Because Plaintiff Did Not Enter Default “[I]t is now well established by the case law that where a pleading is belatedly filed, but at a time when a default has not yet been taken, the plaintiff has, in effect, granted the defendant additional time within which to plead and he is not strictly in default.” (Goddard V. Pollock (1974) 37 Cal.App.3d 137, 141, citing Reher v. Reed (1913) 166 Cal. 525, 528 [“When a party, after the time expressly granted for filing a pleading against him has expired, suffers further time to elapse Without \OOOQON taking any action thereon, and in the mean time the pleading is served and filed, he, by such conduct, in effect grants the additional tithe and the party is not strictly in default”].) Instead, “[t]he proper 10 procedure is for the plaintiff t0 move to strike the defendant’s untimely pleading .” (mg, 37 11 Cal.App.3d at 141.) 12 Moreover, the trial court has discretion to consider an untimely pleading. (Jackson v. Doe 13 (2011) 192 Cal.App.4th 742, 749; McAllister V. County of Monterev (2007) 147 Cal.App.4th 253, 280; and Civ. Proc. Code § 473(a)(1) [“[t]he court may, in furtherance ofjustice, and on any terms as 14 may be proper enlarge the time for answer or demurrer”].) In McAllister, the appellant argued a 15 16 demurrer should have been denied, because a demurrer must be filed and served Within 30 days after service of the complaint per section 430.40(a). (McAllister, 147 Ca1.App.4th at 279.) The McAllister 17 court rejected this argument for two reasons. First, the court noted section 430.40 is permissive, not 18 mandatory, because it uses the term “may” rather than “must” or “shall.” (m., at 280.) Second, the 19 court held “[t]here is no absolute right to have a pleading stricken for lack of timeliness in filing where 20 21 no question of jurisdiction is involved, and where, as here, the late filing was a mere irregularity [citation]; the granting or denial of the motion is a matter which lies within the discretion of the court.” 22 23 (1Q, at 281-282.) 24 The proper remedy for a defendant’s failure to file a timely responsive pleading is to enter 25 default against that defendant. Here, plaintiff chose not to do so. He cannot now use his failure to 26 follow the appropriate procedural mechanism as a defense to a motion to strike. Case law clearly 27 indicates that a plaintiff‘s failure to take a timely default operates as an extension for a defendant to file 28 M type of responsive pleading, and not just the type of responsive pleading that a plaintiff would like. -2- DEFENDANTS’ REPLY BRIEF INSUPPORT OF MOTION TO STRIKE