Case Name: Jimenez v. Golden Ribbon Bakeshop Partnership, et al.
Case No.: 18CV335348

Defendants Gold Ribbon Bakeshop Partnership (“GRP”) and Loritas Balstar (“Loritas”) (collectively, “Defendants”) move to strike the First Amended Complaint (“FAC”) filed by plaintiff Teresita Jimenez (“Plaintiff”).

I. Background

A. Factual

This action arises out of the purported breach of a general partnership agreement. According to the allegations of the FAC, Plaintiff and defendants Loritas, Lusita Garcia and Mario Lagman entered into a written general partnership agreement (the “Agreement”) dated January 15, 1985, the purpose of which was “to engage for profit in the business of bakery and restaurant.” (FAC, ¶ 7.) Among other things, the Agreement provided that partners who devoted less than 20 hours per week to the business were not to receive any salary or compensation “until determined by the unanimous written agreement by 75% of the partners.” (Id., ¶ 10.) From 2009 to July 31, 2017, Plaintiff devoted at least 40 hours per week in the partnership business; nevertheless, she was denied the requisite compensation from the co-partners in breach of the Agreement. (Id., ¶¶ 12-13.) On the latter date, the business of the bakery and restaurant ceased and the defendants assumed sole possession and control of the business and assets, including the real property owned and utilized by the partnership for the operation of the business. (Id., ¶ 15.) The defendants then continued to use the foregoing to the exclusion of Plaintiff without making an accounting to her of any of the income or net profits and losses realized by the partnership as required by the Agreement. (Id.) Plaintiff’s continued demands for an accounting have been denied by the defendants.

B. Procedural

Based on the foregoing allegations, Plaintiff filed the complaint (“Complaint”) against the defendants on September 21, 2018, asserting claims for: (1) breach of partnership agreement; (2) failure to pay minimum wages, overtime wages, and liquidated damages; (3) waiting time penalties under Labor Code section 203; (4) violation of Business and Professions Code section 17200, et al. (the “UCL”); (5) accounting; (6) declaratory relief; and (7) dissolution and winding up. Defendants subsequently demurred to the Complaint and each of the seven causes of action asserted therein on a variety of grounds, including failure to state facts sufficient to constitute a cause of action and uncertainty. (Code Civ. Proc., § 430.10, subds. (e) and (f).) In April 2019, the Court sustained the demurrer to all seven of the claims asserted in the Complaint with 10 days’ leave to amend.

Plaintiff filed the FAC on May 3, 2019, asserting the following causes of action: (1) breach of partnership agreement; (2) an accounting; (3) declaratory and injunctive relief; and (4) dissolution and winding up. On September 4, 2019, Defendants filed the instant motion to strike. Plaintiff opposes the motion.

II. Defendants’ Request for Judicial Notice

In support of their motion to strike, Defendants request that the Court take judicial notice of its order on Defendants’ preceding demurrer to the Complaint as well as a variety of facts, including when the order was sent to Plaintiff and when the FAC was filed. As these items are all either court records or facts and propositions that are not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of indisputable accuracy, judicial notice is proper. (Evid. Code, § 452, subds. (d) and (h).) Accordingly, Defendants’ request is GRANTED.

III. Defendants’ Motion to Strike

A. Timeliness of FAC

Defendants first maintain that the FAC should be stricken in its entirety because it is untimely. As indicated above, Defendants’ demurrer to the original Complaint was sustained by the Court with 10 days’ leave to amend. When a demurrer is sustained with leave to amend, the time within which to amend runs from the date of service of notice of the court’s decision or order, unless such notice is waived in open court. (Code Civ. Proc., § 472b.) Here, such notice was effectuated on April 17, 2019. (Defendants’ Request for Judicial Notice, ¶ 4; Code Civ. Proc., § 664.5, subd. (d) [service of entry of ruling by clerk of court]; Cal. Rules of Court, rule 3.1109 [notice of determination of submitted matters].) If service is effectuated by mail and the address and place of mailing are both in California, as was the case here, time to amend is extended by five days. (Code Civ. Proc., § 1013, subd. (a).) Fifteen days from April 17, 2019 was May 2, 2019; thus, in order to be timely and comply with the Court’s order, Plaintiff’s FAC needed to be filed by that date. However, the FAC was not filed until the following day.

Generally, after the expiration of the time allowed by the court after a demurrer is sustained with leave to amend, a noticed motion is required for permission to file the amended pleading. (Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 612-613.) Defendants note that Plaintiff did not file a noticed motion requesting a permission to file the untimely FAC, and therefore request that the pleading be stricken on this basis. The Court will exercise its discretion in this regard and declines to strike the pleading, given that Defendants do not appear to have been prejudiced by the FAC being filed one day late. (See Harlan v. Department of Transp. (2005) 132 Cal.App.4th 912, 916-917 [stating that the court has discretion to accept an untimely amendment without noticed motion by a plaintiff].)

B. Individual Causes of Action

Defendants next run through each of the claims asserted in the FAC and explain how each either fails to address or cure the concerns articulated by the Court in the preceding order on the demurrer or otherwise fails to plead facts necessary to plead the particular cause of action. Defendants, however, have utilized the incorrect instrument to challenge the sufficiency of the claims pleaded in the FAC. Where a party is asserting that a plaintiff has not pleaded sufficient facts to state a particular cause of action, which is the gist of what is being argued by Defendants here, the proper vehicle to test the sufficiency of the pleadings is a demurrer and not and motion to strike. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529.) While Defendants attempt to characterize the purported deficiencies in the FAC as failing to conform with the Court’s order on the preceding demurrer, the portion of the motion to strike statute which provides that a court may “[s]trike out all or any part of any pleading not drawn in conformity with the laws of this state, a court rule, or an order of the court,” i.e., Code of Civil Procedure section 436, subdivision (d), authorizes “the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed.” (Ferraro v. Camarlinghi, supra, 161 Cal.App.4th at 528.) That is not what is actually being argued here. The motion to strike is the correct mechanism for Defendants’ preceding argument, that the FAC was not filed in conformance with the Court’s order on the demurrer to the complaint because it was untimely, but not with respect to alleged substantive deficiencies in each cause of action. Consequently, Defendants’ motion to strike is DENIED.