Case Number: 18STLC00326 Hearing Date: August 22, 2018 Dept: 94

Defendant Hudson Insurance Co.’s Motion to Strike is DENIED.

I. Background

On February 2, 2018, Plaintiffs Alejandro Fuentes-Aguilar and Eira Geronimo Santiago (collectively, “Plaintiffs”) filed this action for fraud against Defendants Mirage Auto Sales & Leasing, Inc. (“MAS”) and Hudson Insurance Co. (“Hudson”).

On July 12, 2018, Hudson filed a Motion to Strike the Complaint (the “Motion”), seeking to strike punitive damages, pre- and post-judgment interests, and request for attorney’s fees from the Complaint. (Notice of Motion p. 1.)

II. Discussion

A. Timeliness

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” (CCP § 435(b)(1), emphasis added.)

“A notice of motion to strike must be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and must be noticed for hearing and heard at the same time as the demurrer.” (CRC 3.1322(b), emphasis added.)

“The defendant shall answer the amendments, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases.” (CCP § 471.5(a).)

Here, the Complaint was served on Hudson on May 23, 2018. (6/12/18 Proof of Service.) Hudson, however, failed to file the instant Motion over a month and a half after the service. The Motion is, therefore, untimely. Accordingly, Hudson must demonstrate good cause for the Court to exercise its discretion and consider the Motion. Hudson fails to do so. These reasons alone are sufficient for the Court may deny the Motion.

B. Improper Service

“Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” (CCP § 1005(b).)

“[U]nless a statute or rule provides for a different method for filing or service, a requirement to ‘serve and file’ a document means that a copy of the document must be served on the attorney for each party separately represented, on each self-represented party, and on any other person or entity when required by statute, rule, or court order, and that the document and a proof of service of the document must be filed with the court.” (CRC 1.21(b).)

Here, the Motion was served only on Plaintiffs and not MAS (co-defendant)—even though MAS made a general appearance by filing its Answer on June 22, 2018. (Motion, Proof of Service; See 6/22/18 Answer.) Thus, Hudson fails to serve the Motion on all the parties as required by CCP § 1005(b) and CRC 1.21(b). Failure to properly serve the moving papers is also another ground to deny this Motion.

C. Meet and Confer

CCP § 435.5(a)(3) requires the moving party on a motion to strike to file and serve a meet-and-confer declaration.

Here, Hudson submits no declaration attesting to any meet-and-confer effort it made with Plaintiffs to resolve the objections raised herein. Thus, Hudson fails to satisfy the meet-and-confer requirement of CCP § 435.5(a)(3).

III. Conclusion

For untimeliness and failure to properly serve all the parties, the Motion is DENIED.

Moving party to give notice.