2017-00212288-CU-BC

Baljinder Singh vs. Phanikumar Vadarevu

Nature of Proceeding: Motion to Strike Unverified First Amended Complaint

Filed By: Wong, Cyndi K.

Defendants Phanikumar Vadarevu and Sita Vadarevu’s (collectively, “Defendants”) Motion to Strike Plaintiffs’ Unverified First Amended Complaint is DENIED.

Plaintiffs Bajinder Singh and Ajit Singh (collectively, “Plaintiffs”) filed their original complaint on May 10, 2017, alleging four causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, and conversion (and in the caption a possible fifth cause of action for “demand for arbitration”). Defendants demurred to the complaint and the Court sustained the demurrer with leave to amend as to the causes of action for breach of contract and breach of the implied covenant. The Court further noted a “demand for arbitration” is not a cause of action.

The Court’s November 15, 2017, Order stated that where the demurrer has been sustained with leave to amend “Plaintiffs may file and serve an amended complaint no later than 12/1/2017.” The Minute Order further ordered that “[t]o the extent plaintiffs may wish to add new parties and/or causes of action, they should promptly file and serve a noticed motion to amend in conformity with CRC Rule 3.1324.”

On December 5, 2017, after the Court’s deadline, Plaintiffs filed a First Amended Complaint (“FAC”). Plaintiffs’ counsel concedes the FAC was untimely and purports it was due to his belief the complaint had been sent to One Legal Inc. before the 2:00 p.m. filing deadline when, in fact, it had not. Plaintiffs’ counsel indicates he took

measures to file the FAC as soon as possible after he discovered the error.

The FAC alleges new Plaintiffs and Defendants. Specifically, the FAC now alleges Plaintiffs to be 421 San Juan LLC and Seva Assisted Living at Natomas, Inc. and Defendants to be PSVN Properties, LLC and Twin Rivers at Natomas, Inc.

Defendants contend the entire FAC should be stricken because it was untimely and because Plaintiffs did not file or serve a noticed motion to add new parties in conformity with CRC Rule 3.1324 as required by the Court’s November 15th Minute Order.

Although Defendants FAC was untimely filed, the Court has discretion to deny a motion to strike a late filed pleading and accept the pleading without a noticed motion seeking permission to amend if the delay in filing the amended pleading was “brief and inconsequential.” (Harlan v. Dept. of Transportation (2005) 132 Cal.App.4th 868, 872-874.) The FAC was filed four days after the ordered date. As such, the Court finds the delay brief and inconsequential. The motion to strike based on untimeliness is denied.

Further, the notice of motion seeks only to strike the entire FAC, not particular portions of the pleading. California Rules of Court Rule 3.1322(a) requires the notice of motion to quote the portions that are sought to be stricken unless the motion is to strike a specific paragraph, cause of action, count, or defense. The Court denies Defendants’ motion on the grounds that it is overbroad. Defendants have failed to present sufficient grounds evidencing that the entirety of all of the allegations contained in the FAC are irrelevant, false, or improper and, therefore, should be stricken.

The motion to strike the entire FAC is DENIED.