Case Number: EC063730 Hearing Date: October 19, 2018 Dept: NCD

TENTATIVE RULING

Calendar: 2

Date: 10/19/18

Case No: EC 063730 Trial Date: February 4, 2019

Case Name: Bethune v. Bucalo

MOTION TO STRIKE CROSS-COMPLAINT

[CCP §435, 436]

Moving Party: Cross-Defendant Patricia Bethune

Responding Party: Cross-Complainant Kenneth Bucalo

RULING:

Cross-Defendant Patricia Bethune’s Motion to Strike Cross-Complainant Kenneth Bucalo’s Cross-Complaint is DENIED. It is untimely under CCP § 435, filed and served nearly three months late. The request for judicial notice does not include any court order reflecting the court’s previous order with which it is argued the cross-complaint fails to comply. The opposition represents that the parties entered into an understanding that the previous demurrer would not result in a ruling, so no opposition was filed or appearance made by the opposing party. No basis for striking the cross-complaint has been established.

Ten days to answer.

RELIEF REQUESTED:

Strike cross-complaint

MEET AND CONFER:
No

CAUSES OF ACTION: from (Form) Cross-Complaint

Common Counts

Open Book Account

Rents Due

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff Patricia Bethune alleges that she moved into a 4-plex rental property owned by defendant in Studio City in the year 1986, and lived at the property for 29 years, and that throughout her tenancy, plaintiff has always paid her rent on time or earlier than the due date, and was a model tenant with no complaints lodged against her until the incidents of this lawsuit.

Plaintiff alleges that the rental unit was protected by the Los Angeles County Rent Stabilization Ordinance, and that in 2009 or 2010, defendant Bucalo moved into the subject building, began remodeling, and began a campaign of what appeared to plaintiff to be harassment to induce tenants to vacate the building, thus allowing defendant to avoid the restrictions of rent control. Plaintiff alleges that defendant ignored all repair requests of plaintiff, so that in November of 2013 she contacted the housing department concerning conditions she considered substandard. Plaintiff alleges that defendant was then sent Notices to Comply with plaintiff’s requests for repairs and maintenance, to which he responded by serving plaintiff with various notices of entry, and a Notice to Perform or Quit with respect to some glass on plaintiff’s patio, which was withdrawn, and Notices to Vacate, the second of which was not withdrawn, and included an admission that plaintiff’s complaint to the housing authorities was one of the reasons for the eviction.

Defendant filed an unlawful detainer action against plaintiff, which was withdrawn two days before trial, after plaintiff had incurred attorneys’ fees and costs to prepare for a jury trial.

Defendant has again served a Notice to Vacate, which again admits that plaintiff’s complaints to the housing agencies were one of the basis for the new plan to evict plaintiff.

The complaint alleges causes of action for malicious prosecution, abuse of process, violation of California Civil Code § 1940 et seq., housing discrimination in violation of FEHA, and violation of Los Angeles Rent Stabilization Ordinance.

On September 14, 2017, this court deemed this action related to two other pending cases, and ordered those matters transferred to this Department.

On January 5, 2018, the court heard an unopposed motion to consolidate the related cases, which was granted, and this case was ordered consolidated with Case No. NW 17B02768 and both cases also ordered consolidated with Case No. 17 K09208, with this case to be the lead case.

On May 22, 2018, at a Status Conference, the parties represented that they had stipulated to permit the filing of a First Amended Complaint, and a Cross-Complaint by Bucalo. Based on that stipulation, the court singed an order allowing the filing of those pleadings.

ANALYSIS:

Procedural

Untimely Motion

Under CCP §436, the court may “upon motion made pursuant to Section 435, or at any time in its discretion” 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.”

Under CCP §435, a party may serve and file a notice of motion to strike “within the time allowed to respond to a pleading…”

Under CCP section 421.20(a)(3), a response to the complaint is due within 30 days after summons is served upon the party.

Under CCP §430.40, the time permitted to demur to a complaint is “within 30 days after service of the complaint…”

Here, the cross-complaint was filed on May 16, 2018, and served on May 15, 2018 by mail. The order officially permitting the filing of the cross-complaint was signed and filed on May 22, 2018. Thirty days from the latest of these dates was June 21, 2018. Allowing an additional five days for service by mail would fix the last day to file a motion to strike as June 26, 2018. The motion was served on September 22, 2018, and filed on September 24, 2018. This is nearly three months late. The motion could be denied as untimely, but the court elects not to do so.

No Meet and Confer

There is no meet and confer declaration filed with this motion. CCP § 435.5 requires that before filing a motion to strike, the moving party must meet and confer:

“(a) Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading.

(1) As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency.

(2) The parties shall meet and confer at least five days before the date a motion to strike must be filed. If the parties are unable to meet and confer at least five days before the date the motion to strike must be filed, the moving party shall be granted an automatic 30-day extension of time within which to file a motion to strike, by filing and serving, on or before the date a motion to strike must be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the motion to strike was previously due, and the moving party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.

(3) The moving party shall file and serve with the motion to strike a declaration stating either of the following:

(A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion to strike, and that the parties did not reach an agreement resolving the objections raised by the motion to strike.

(B) That the party who filed the pleading subject to the motion to strike failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.

(4) A determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion to strike.”

There is no meet and confer declaration submitted with this motion to strike. This is especially alarming as it appears that the motion is based on a misunderstanding that could have been avoided by a simple meet and confer and an agreement to permit amendment, and instead the litigation of this matter has been permitted to be unnecessarily delayed. The court may continue the matter and require the parties to meet and confer, or may require them to meet in the hallway before the motion will be called for hearing.

Demurrer?

The opposition refers to a demurrer to the pleading, when evidently no demurrer has been filed; there is simply a motion to strike. We have checked the reservation system, and all court computer programs and have found no demurrer filed as to the cross-complaint. This ruling will accordingly address only the motion to strike.

Substantive

Under CCP§ 436:

“The court may, upon a motion made pursuant to CCP § 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) 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 § 437 provides:

(a) 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.

(b) Where the motion to strike is based on matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, such matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.”

Cross-defendant seems to argue here that the cross-complaint must be stricken as not filed in conformity with a previous order of the court in case 17K09208. Cross-defendant requests that the court take judicial notice of the meet and confer attempt, demurrer and tentative ruling, adopted as the final ruling, in that case, and strike the current cross-complaint in this case because it does not make any changes to the pleading which was found in the other case subject to demurrer.

The opposition indicates that what has occurred here is that after the demurrer was filed in the other case, but before the hearing, the consolidation process of the cases commenced, and prior to the hearing, counsel for Bucalo had a conversation requesting that the demurrer in the limited case either be taken off calendar or continued until the consolidation process was complete, and counsel for Bethune stated that such would not be necessary, as she would not be appearing and the court would not make a ruling. Counsel for Bucalo indicates that “I relied upon this representation and did not file any opposition and did not appear.” [Gluck Decl., para. 4].

It appears that the intention all along in connection with the consolidation was that the complaint in the limited case would become a cross-complaint in this case. The moving papers do not include the actual court order entered which would show if there were appearances at the hearing, and possibly if opposition was filed. The RFJN only attaches the “Tentative Ruling” which would remain tentative without some further showing by the moving party that it actually became the order of the court. Interestingly enough, the statute of limitations argument that cross-defendant seems to be relying on in the motion here was rejected by the other court in its tentative ruling, and the tentative was to overrule the demurrer on statute of limitations grounds. [RFJN, Ex. C].

This motion appears to be simply a waste of time given that the Department 77 sustained the demurrer on the complaint in that action with leave to amend. The complaint in the related action is the same pleading as the cross-complaint in this action and is allowed to stand.

The parties should then be required to meet and confer in good faith before any further demurrer or motion to strike are filed, and to fully brief the merits of the argument that the open book account claim is not sufficiently stated.