Case Name: Kristine Dulay, et al. v. Christopher Q. Viray, D.D.S., et al.
Case No.: 2015-1-CV-287422

Motion to Strike Portions of the First Amended Complaint by Defendants Christopher Q. Viray, D.D.S. and Yi Chin Lee

Factual and Procedural Background

This is a landlord tenant action. On October 30, 2013, plaintiffs Vincent Dulay (“Vincent”) and Katherine Dulay along with their children, Victoria Dulay (“Victoria”), Christian Dulay (“Christian”), and Bradley Dulay (“Bradley”) (collectively, “Plaintiffs”) moved into a single-family home located at 11041 Stevens Canyon Road in Cupertino, California (the “property”). (See First Amended Complaint [“FAC”] at ¶ 14.) Defendant Christopher Q. Viray, D.D.S. (“Viray”) is the owner and landlord of the property. (Id. at ¶ 4.) Defendant Yi Chin Lee (“Lee”) is the property manager for the subject premises. (Id. at ¶ 5.) During their tenancy, Plaintiffs allege that defendants Viray and Lee (collectively, “Defendants”) engaged in the following misconduct: (1) interfered with Plaintiffs’ right to privacy; (2) interfered with Plaintiffs’ enjoyment of the property; (3) failed to make repairs within a reasonable amount of time; (4) failed to give 24-hour notices of entry; (5) constructively evicted Plaintiffs due to prolong constructions and repairs; and (6) illegally evicted Plaintiffs for expressing their rights. (Id. at ¶¶ 237, 239-243.)

On February 16, 2016, Plaintiffs filed a FAC, now the operative pleading, setting forth causes of action for: (1) violation of Civil Code § 1942.4; (2) tortuous breach of warranty of habitability; (3) breach of the covenant of quiet enjoyment; (4) private nuisance; (5) Business and Professions Code § 17200 et seq.; (6) negligence; (7) negligent infliction of emotional distress; (8) intentional infliction of emotional distress; (9) breach of the covenant of good faith & fair dealing; (10) retaliatory eviction under Civil Code § 1942.5; (11) retaliation under the Unif. Residential Landlord & Tenant Act § 5.101(b); (12) trespass; (13) breach of contract; (14) breach of implied warranty of quiet enjoyment; (15) invasion of privacy – tort; and (16) invasion of privacy – constitutional privacy.

On March 21, 2016, Defendants filed the motion presently before the Court, a motion to strike portions of the FAC. (Code Civ. Proc., §§ 435, 436.) Plaintiffs filed written opposition along with a request for judicial notice. Defendants filed reply papers.
Motion to Strike Portions of the FAC

Timeliness

As a preliminary matter, Plaintiffs argue that the motion to strike is untimely filed as it was not addressed to the initial Complaint in this action. A motion to strike any pleading must be filed “within the time allowed to respond to a pleading” – e.g., 30 days after service of the complaint or cross-complaint unless extended by court order or stipulation. (Code Civ. Proc., § 435, subd. (b)(1).) Plaintiffs’ argument is misplaced as the FAC has superseded the Complaint and is now the operative pleading in this action. (See State Comp. Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130 [an amended complaint supersedes all prior complaints].) Thus, in reply, Defendants claim that the FAC was served by mail on February 16, 2016. In adding five days for service by mail (See Code Civ. Proc., § 1013), Defendants persuasively argue that they timely filed their motion to strike on March 21, 2016. Even if the motion to strike was untimely filed, the Court would still have discretion to hear the motion on its merits. (See McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 281-282 [there is no absolute right to have a pleading stricken for lack of timeliness in filing where no question of jurisdiction is involved and the late filing was a mere irregularity; the granting or denial of the motion is a matter which lies within the discretion of the court].)
Request for Judicial Notice

Plaintiffs’ request for judicial notice of Civil Code section 1954 is GRANTED. (See Evid. Code, § 451, subd. (a).)

Legal Standard

A court may strike out any irrelevant, false, or improper matter asserted in a pleading. (Code Civ. Proc., § 436, subd. (a).) A court may also strike out all or any part of a pleading not filed in conformity with the laws of the State of California. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

Analysis

In support of the motion, Defendants attach Exhibit A which incorporates a total of 53 sets of allegations from the FAC which they seek to strike as irrelevant and improper matter.

Item Nos. 1-28 from Exhibit A

With respect to Item Nos. 1-28 in Exhibit A, Defendants move to strike allegations in the FAC concerning identification requests and license information of contractors and workers utilized by Defendants to remedy issues at the subject property. Defendants argue that these allegations are immaterial to any cause of action and would cause unnecessary prejudice and confusion to the jury.

Defendants’ arguments are not well-taken. As a threshold matter, the motion appears to be too broad as it examines allegations beyond the scope of contractor license information. (See Triodyne, Inc. v. Superior Court for Los Angeles County (1966) 240 Cal.App.2d 536, 542 [“Where a motion to strike is so broad as to include relevant matters, the motion should be denied in its entirety.”].) In fact, Defendants challenge background factual allegations which provide at least some support for Plaintiffs’ claims in the FAC. The prejudice argument also lacks merit given that the FAC itself is not evidence. (See, e.g., Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 212; Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 45.) In the event that Plaintiffs attempt to read the FAC to the jury at trial, Defendants can object on grounds of undue prejudice at that time. While the FAC is far from a model pleading, there is no legal basis to strike these allegations.

Item Nos. 29-53 from Exhibit A

With respect to Item Nos. 29-53, Defendants move to strike allegations in the FAC concerning defendant Lee’s children, attorney-client communications, and other unnecessary and inflammatory allegations. Defendants argue that these allegations are immaterial to any cause of action and would cause unnecessary prejudice and confusion to the jury.

Defendants’ arguments are not well-taken. Again, Defendants challenge only underlying background information and the motion appears to be too broad as it examines at least some relevant allegations. For example, the allegations in Item No. 44 allege in part that defendant Lee failed to provide 24-hour written notice of entry onto the property. Such an allegation supports Plaintiff’s breach of the implied warranty of quiet enjoyment claim. (See FAC at ¶ 240; see also Triodyne, Inc. v. Superior Court for Los Angeles County, supra, 240 Cal.App.2d at p. 542 [“Where a motion to strike is so broad as to include relevant matters, the motion should be denied in its entirety.”].) Furthermore, as stated above, in the event that Plaintiffs attempt to read the FAC to the jury at trial, Defendants can object on grounds of undue prejudice at that time. Defendants may also be able to narrow down issues in the case before trial once the parties engage in civil discovery. Consequently, the Court finds no legal basis to strike the allegations in Item Nos. 29-53.

Disposition

The motion to strike portions of the FAC is DENIED.