Case Number: BC545697 Hearing Date: June 08, 2018 Dept: 47

David Penilla, et al. v. Westmont Corporation d/b/a Wildwood Mobile Home Country Club, et al.

(1) MOTION FOR LEAVE TO FILE SIXTH AMENDED COMPLAINT;

(2) MOTION TO STRIKE RE: FIFTH AMENDED COMPLAINT

MOVING PARTY: (1) Plaintiffs David Penilla, et al.

(2) Defendants Westmont Corporation d/b/a Wildwood Mobile Home Country Club, Mark Rutherford, Jo Davenport, Gary Davenport and Jose Hernandez

RESPONDING PARTY(S): (1) Defendants Westmont Corporation d/b/a Wildwood Mobile Home Country Club, Mark Rutherford, Jo Davenport, Gary Davenport and Jose Hernandez

(2) Plaintiffs David Penilla, et al.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs are residents of a mobile home park. Plaintiffs alleges that Defendants have failed to maintain the common areas. Plaintiffs also allege a series of unrelated acts of rudeness and intimidation by various Defendants as well as refusal to approve buyers of Plaintiffs’ mobile homes.

Plaintiff brings a second motion for leave to file a sixth amended complaint. The previous motion was denied on March 19, 2018.

Defendants Westmont Corporation d/b/a Wildwood Mobile Home Country Club, Mark Rutherford, Jo Davenport, Gary Davenport and Jose Hernandez move to strike portions of the fifth amended complaint.

TENTATIVE RULING:

Plaintiffs David Penilla, et al.’s motion for leave to file a sixth amended complaint is DENIED.

The motion to strike Item No. 1 (¶ 420, page 70, lines 20-24); Item No. 2, (¶ 421, page 70, line 27 – Page 71, line 8), Item No. 3 (¶ 424, Page 72, line 27 – Page 72, line 2); Item No. 4 (¶ 430, page 73, lines 20-23); Item No. 5 (Prayer for Damages, ¶ 5, Page 266, lines 14-17); Item No. 6 (Prayer for Damages, ¶ 4, Page 266, line 13); Item No. 7 (¶ 522, Page 98, lines 12-13); Item No. 8 (¶ 153, Page 24, lines 2-5); Item No. 9 (¶ 323, Page 48, lines 21-25); Item No. 10 (¶ 472, Page 85, lines 13-17); Item No. 11 (¶ 1183, Page 264, lines4-7); Item No. 12 (Page 1, lines 9 to Page 2, line 12, as to the specified Plaintiffs); Item No. 13 (Page 1, line 9 to Page 2, line 12, as to the specified Plaintiffs); ) Item No. 14 (¶ 101, Page 12, lines 2-26, as to the specified Plaintiffs) is GRANTED without leave to amend.

DISCUSSION:

Motion For leave To File Sixth Amended Complaint

Plaintiff brings a second motion for leave to file a sixth amended complaint. The previous motion was denied on March 19, 2018. The Court did not indicate that Plaintiff was free to bring another motion for leave to file a sixth amended complaint. Whether considered a motion for reconsideration or a renewed motion, in bringing this motion Plaintiffs have failed to comply with CCP § 1008, which requires that new or different facts, circumstances or law be demonstrated. Moreover, Plaintiff must give a satisfactory explanation for failing to produce evidence at an earlier time. New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-15.

Accordingly, the second motion for leave to file a sixth amended complaint is DENIED.

Motion To Strike

Meet and Confer

The Declaration of Katherine A. Tatikian submitted in connection with the demurrer also reflects that the meet and confer addressed the motion to strike as well. Tatikian Decl., ¶ 2. Thus, the meet and confer requirement set forth in CCP § 435.5 was satisfied.

Request For Judicial Notice

Plaintiffs’ request that the Court take judicial notice of the Reporter’s Transcript of Proceedings from the May 4, 2018 hearing is GRANTED. The Court may properly take judicial notice of the reporter’s transcript of court proceedings pursuant to Evidence Code §§ 452(d) and 459. See, e.g., In re Travis C. (1991) 233 Cal.App.3d 492, 497 n.4 & 5.

Analysis:

At the May 4, 2018 hearing on Defendants’ motion to strike, the Court ordered the parties to file additional briefing only as to Items 12 and 14 set forth in the notice of motion to strike. Items 12 and 14 are as follows:

Claims Included In The Fifth Amended Complaint Of Persons Who Were Stricken Without Leave To Amend From The Fourth Amended Complaint Pursuant To This Court’s November 21, 2017 Final Ruling; These Persons Were Identified In The Fourth Amended Complaint’s Caption As Plaintiffs But Were Not Alleged To Have Entered Into Any Lease With The Westmont Defendants.

12. From the Fifth Amended Complaint’s Caption, p. 1, 1. 9 to p. 2, 1. 12, the names of the following persons — (1) Abeyta, Linda, (2) Adams, Suzanne, (3) Aguila, Monique, (4) Aguilar, Belinda. A., (5) Alvaraz, Patricia, (6) Caro, Irene, (7) Castro, Carole, (8) Castro, Lizeth, (9) Flores, Sal, (10) Gonzalez, Miguel, (11) Gorman, James, (12) Gutierrez, Aurora, (13) Hernandez, Juana, (14) LaFavre, Nicholas, (15) Lemus, Victor, (16) Lopez, Esther, (17) Mendez, Graciela, (18) Monsalvo, Fernando, (19) Montid, David, (20) Navarro, Diane, (21) Navarro, William, (22) Nunez, Guadelupe, (23) Torreo, Michael, (24) Padilla, Fernando, (25) Perez, Beatrice, (26) Pinedo, Guadalupe, (27) Preciado, Sarah, (28) Schultz, Eileen, (29) Sedillo, Dominque, (30) Sedillo, Patricia A., (31) Silva, Lupe, (32) Timke, Christine, (33) Timke, Terry, (33) Torres, Hetty, (34) Trejo, Tomas, (35) Verduzco, Juan C. and (36) Verduzco, Teresilda, who were stricken from the Fourth Amended Complaint (p. 1, 1. 9 to p. 2, I. 15) without leave to amend pursuant to this Court’s 11/21/17 Final Ruling granting Defendants’ motion to strike in part. [Ex. B, pp. 3, 27 (Item No. 39)] In violation of that Order, the names of these persons are re-asserted as putative Plaintiffs in the Fifth Amended Complaint.

. . .

Claims Included In The Fifth Amended Complaints Of Persons Whose Claims Were Stricken Without Leave To Amend From The Fourth Amended Complaint Pursuant To This Court’s November 21, 2017 Final Ruling; The Fourth Amended Complaint Alleged That These Persons Entered Into A Lease With Defendants But Did Not Identify Them As Plaintiffs In The Fourth Amended Complaint’s Caption Or Otherwise Refer To Them In The Fourth Amended Complaint

14. From the Fifth Amended Complaint (¶ 101, p. 12, ls. 2-26), the names of the following persons — (1) Barajas, Noel, (2) Castenada, Hilda, (3) Aniaga, Alejandro, (4) Marin, Carlos, (5) Ortiz, Justino and (6) Lopez, Marcos — who were stricken from the Fourth Amended Complaint (p. 1, 1. 9 to p. 2, 1. 15) without leave to amend pursuant to this Court’s 11/21/17 Final Ruling granting Defendants’ motion to strike in part. [Ex. B, pp. 3, 27 (Item No. 41)] In violation of that Final Ruling, the names of these stricken persons are re-asserted as putative Plaintiffs in the Fifth Amended Complaint (Ex. D, p. 1, 1. 9 to p. 2, 1. 12).

The Court agrees with Defendants’ argument that Plaintiffs did not timely move for reconsideration of this Court’s November 21, 2017 Final Ruling. Thus, whatever justification Plaintiffs set forth in their Supplemental Brief filed on May 18, 2018 should have been raised by a timely motion for reconsideration pursuant to CCP § 1008 after the parties received the Court’s Final Ruling Upon Submission[1]. Instead, Plaintiffs simply ignored the Court’s order granting Defendants’ motion to strike without leave to amend, and re-named the above Plaintiffs without seeking to persuade the Court that these Plaintiffs should properly be included in the 5AC following the Court ruling on the motion to strike re: the 4AC.

As such, the motion to strike Item No. 1 (¶ 420, page 70, lines 20-24); Item No. 2, (¶ 421, page 70, line 27 – Page 71, line 8), Item No. 3 (¶ 424, Page 72, line 27 – Page 72, line 2); Item No. 4 (¶ 430, page 73, lines 20-23); Item No. 5 (Prayer for Damages, ¶ 5, Page 266, lines 14-17); Item No. 6 (Prayer for Damages, ¶ 4, Page 266, line 13); Item No. 7 (¶ 522, Page 98, lines 12-13); Item No. 8 (¶ 153, Page 24, lines 2-5); Item No. 9 (¶ 323, Page 48, lines 21-25); Item No. 10 (¶ 472, Page 85, lines 13-17); Item No. 11 (¶ 1183, Page 264, lines4-7); Item No. 12 (Page 1, lines 9 to Page 2, line 12, as to the specified Plaintiffs); Item No. 13 (Page 1, line 9 to Page 2, line 12, as to the specified Plaintiffs); ) Item No. 14 (¶ 101, Page 12, lines 2-26, as to the specified Plaintiffs) is GRANTED without leave to amend.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: June 8, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court