Case Number: BC513267    Hearing Date: September 02, 2014    Dept: J

Re: KASA Entertainment, LLC v. C.K.L. Investment Corporation, etc., et al. (BC513267)

MOTION TO STRIKE FIRST AMENDED CROSS-COMPLAINT

Moving Party: Plaintiff and Cross-Defendant KASA Entertainment, LLC and Cross-Defendants Aram Aylozyan, Sarkis Topalian and Kerim Mkrthcyan

Respondent: No timely opposition filed

POS: Moving OK

This is an action filed by Plaintiff against its former landlord, CKL Investment Corporation (“CKL”), and an entity hired by CKL to pressure wash the windows on the subject premises, Crown Building Services, Inc. (“Crown”). Plaintiff alleges that CLK refused to allow Plaintiff to retrieve its personal property after it vacated from the subject premises and that CKL is utilizing Plaintiff’s personal property to host a nightclub without Plaintiff’s authorization. Plaintiff also alleges that Crown damaged Plaintiff’s inventory consisting of speakers, furniture and electrical equipment. The Complaint, filed on 6/25/13, asserts causes of action for:

1. Trespass to Chattel
2. Conversion
3. Breach of Covenant of Quiet Enjoyment
4. Negligence
5. Intentional Infliction of Emotional Distress

On 8/15/13, CKL filed a Cross-Complaint against Plaintiff and individual cross-defendants for:

1. Post Judgment Money Owed for Storage After Judgment for Eviction
2. Breach of Contract
3. Trespass to Chattels

On 5/5/14, Crown filed a cross-complaint against CKL for:

1. Indemnity
2. Contribution
3. Declaratory Relief

On 5/29/14, CKL filed a First Amended Cross-Complaint for:

1. Post Judgment Money Owed for Storage After Lock-Out
2. Breach of Contract
3. Trespass to Chattels
4. Intentional Misrepresentation

The trial is set for 2/17/15.

Plaintiff and Cross-Defendant KASA Entertainment, LLC and Cross-Defendants Aram Aylozyan, Sarkis Topalian and Kerim Mkrthcyan (collectively “Cross-Defendants”) move to strike C.K.L. Investment Corporation’s (“CKL”) First Amended Cross-Complaint (“FACC”) on the grounds that CKL did not obtain leave of this court to amend its original Cross-Complaint before filing its FACC and that no proof of service is attached to the FACC.

The court may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP § 436.)

Plaintiffs can amend their complaint once “of course” (without leave of court) before defendant’s answer or demurrer is filed. The same rule applies to amendment of cross-complaints. (CCP § 472; see Woo v. Sup.Ct. (Zarabi) (1999) 75 Cal.App.4th 169, 175.)

A cross-complaint against a party who has appeared in the action must be accompanied by proof of service of the cross-complaint at the time it is filed. (CRC 3.110(c).)

Cross-Defendants filed their Answers to the Cross-Complaint on October 4, 2013. However, CKL filed its FACC on May 29, 2014, without first seeking leave to amend. Further, the FACC is not accompanied by proof of service as required under CRC 3.110(c). Thus, the motion to strike is granted. [In an untimely opposition served and filed just 4 court days prior to the hearing, counsel for Cross-Complainant merely notes that he has now filed a motion for leave to file an amended cross-complaint, which is pending.]