Case Name: James Leo Jacobs, et al. v. Satish Ramachandran
Case No.: 17CV312418

This matter arises from a dispute between the owners of adjoining residential properties over where the legal boundary between the properties is located and whether a planned expansion of an “accessory structure” crosses the legal boundary and infringes on the adjoining property. Plaintiffs/Cross-Defendants James Leo Jacobs and Pamela Lawrie Jacobs (“Plaintiffs”) filed a Complaint on June 29, 2017 stating claims for Quiet Title, Declaratory Relief and Permanent Injunction. Defendant/Cross-Complainant Satish Ramachandran (“Defendant”) filed a Cross-Complaint on August 30, 2017 stating claims for Quiet Title, Declaratory Relief, Injunctive Relief, Private Nuisance, Trespass, Assault and Battery. Both Plaintiffs separately filed verified answers to the Cross-Complaint on October 4, 2017. Currently before the Court is Plaintiffs’ motion to strike portions of the Cross-Complaint, supported by a request for judicial notice. The motion was filed on November 19, 2018.

As an initial matter, pursuant to Code of Civil Procedure (“CCP”) §435.5 “[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 . . .” The mere sending of emails, as referenced in the declaration of Plaintiffs’ Counsel Kathryn Curry, does not comply with the express terms of the statute. Because the failure to comply with the meet and confer requirement is not in itself a basis for denying the motion (see CCP §435.5(a)(4)) the Court will still consider the motion.

Request for Judicial Notice
A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.)

Pursuant to Evidence Code §452(d) Plaintiffs ask the Court to take judicial notice of the operative Cross-Complaint. The request is DENIED as the Court already considers the targeted pleading in ruling on a demurrer or motion to strike. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn.1 [denying as unnecessary a request for judicial notice of pleading under review on demurrer].)

Motion to Strike Portions of the Cross-Complaint
A motion to strike may be employed to remove “irrelevant, false or improper” matters from a complaint or cross-complaint. (See CCP § 436(a).) Irrelevant matter includes (1) an allegation that is not essential to the statement of a claim or defense, (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense, and (3) a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint. (See CCP §431.10(b), (c).) As with demurrers, the policy of the law is to construe the pleadings liberally with a view to substantial justice. (See CCP §452.) In ruling on motion to strike portions of a pleading, the court reads the targeted pleading as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, citing Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.) A motion to strike may seek to remove portions of a cause of action that could not be demurred to. However, in allowing motions to strike portions of a cause of action courts have stated “we have no intention of creating a procedural ‘line item veto’ for the civil defendant.” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.)

In their motion Plaintiffs ask the Court to strike paragraphs 29, 31, 32, 33, 34, 35, 36 and 37 (part of the Cross-Complaint’s general allegations), paragraphs 50.c, 50.e, 51.c, and 51.d (part of the second cause of action for declaratory relief), paragraphs 55c (part of the third cause of action for permanent injunction), paragraph 59.c (part of the fourth cause of action for private nuisance) as well as paragraphs 2.c and 2.e of the Cross-Complaint’s Prayer. (See Plaintiffs’ Notice of Motion at p. 1:9-3:4.) The stated basis for the motion is that Defendant “is precluded from disputing the legality of Plaintiffs’ accessory structure or the propriety of the City of Los Altos’ permit with respect thereto because [Defendant] failed to exhaust his administrative remedies prior to bringing a civil action.” (Notice of Motion at p. 3:6-9, brackets added.) “When a statute or lawful regulation establishes a quasi-judicial administrative tribunal to adjudicate remedies, ‘the aggrieved party is generally required to initially resort to that tribunal and to exhaust its appellate procedure.’” (Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 155-156, internal citation omitted.)

Plaintiffs’ motion is untimely and can be DENIED in its entirety solely on that basis. A motion to strike all or portions of a pleading must be filed “within the time to respond to a pleading,” meaning 30 days after service unless extended by court order or stipulation. (See CCP §435(b)(1); Cal. Rule of Court 3.1322(b).) The current motion was filed more than a year after Plaintiffs were served with the Cross-Complaint by regular mail and filed their verified answers to the Cross-Complaint.

The Court also notes that in ruling on a demurrer or motion to strike the Court considers only the pleading under attack, any attached exhibits (part of the “face of the pleading”) and any facts or documents for which judicial notice is properly requested and may be granted. The Court cannot consider extrinsic evidence in ruling on a demurrer or motion to strike. It is not apparent from the face of the Cross-Complaint that Defendant was required to or failed to exhaust administrative remedies. Even if the motion were timely, Plaintiffs’ quotations of purported provisions of the City of Los Altos Municipal Code in the body of their memorandum of points and authorities in support of the motion constitutes an argument based on extrinsic evidence as they have failed to request judicial notice of any relevant provisions of the Los Altos Municipal Code. Because of this Plaintiffs have failed to establish that exhaustion of administrative remedies, which is usually asserted by a government body as a basis for a demurrer and not a motion to strike only portions of a cause of action, applies to this dispute between private parties.

Notwithstanding the flaws in the motion the Court notes that Defendant does not oppose a significant portion of it. Defendant’s Opposition states in pertinent part that “Defendant voluntarily withdraws the request for injunctive relief in his cross-complaint as it relates to the Jacobs accessory structure. Specifically, Defendant is willing to withdraw/strike the following sections from his cross-complaint . . .” Defendant goes on to list Paragraphs 50.c, 50.e, 51.c, 51.d, 55.c, 59.c of the Cross-Complaint and Paragraphs 2.c and 2.e of the Prayer. (See Defendant’s Opposition at pp. 5:12-6:9.)

Based solely on Defendant’s concession the Court will GRANT the motion to strike without leave to amend only as to Paragraphs 50.c, 50.e, 51.c, 51.d, 55.c, 59.c and Paragraphs 2.c and 2.e of the Prayer. In all other respects the motion is DENIED as untimely and on the basis that even if it were timely Plaintiffs have failed to establish that it can be determined from the “face of the pleading” or from material for which judicial notice was properly requested and granted that the targeted portions of the Cross-Complaint are “irrelevant, false or improper” based on Defendant’s purported failure to exhaust administrative remedies.