17-CIV-04134 NICOLOSI DISTRIBUTING, INC. VS. L&J AUTO WORKS & TOWING, INC., ET AL.

NICOLOSI DISTRIBUTING, INC. L&J AUTO WORKS & TOWING, INC.
ELIZABETH BETOWSKI DAVID M. SLOAN

MOTION TO STRIKE TENTATIVE RULING:

The motion to strike by Cross-defendant NICOLOSI Distributing is denied.

L & J’s purported knowledge of Axalta’s true name when L & J filed the cross-complaint is not disclosed by the face of the pleading or by any judicially noticeable matter. (See Code of Civ. Proc. Sect. 437, subd. (a).) Further, NICOLOSI does not specify in the Notice of Motion or Points and Authorities that the motion is based on any judicially noticeable matter. (Id. section. 437, subd. (b.))

Even if the Court were to consider the matters set forth in the moving Declaration of Franck, the Court would find that the Roe amendment is not necessarily improper. Although L & J possibly knew the name “Axalta” when filing the cross-complaint, the opposing evidence shows that L & J might have been “ignorant of the facts giving rise to a cause of action against [Axalta]” and that L & J lacked knowledge of Axalta’s connection with the case or with L & J’s injuries. (Fuller v. Tucker (2000) 84 Cal. App. 4th 1163, 1170.)