Lily Medina vs. Irma L Gutierrez

Motion to Strike

Cal. Super. - 4th Dist.September 15, 2017

SS OO 0 NN O N Wn Bs W N 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jeffrey Kagan (SBN 193240) Christina M. Vier (SBN 317247) WINGET SPADAFORA & SCHWARTZBERG LLP 1900 Avenue of the Stars, Suite 450 Los Angeles, CA 90067 Telephone: 310.836.4800 Facsimile: 310.836.4801 Attorneys for Defendant SANTIAGO COMMUNITIES, INC. ELECTRONICALLY FILED Superior Court of California, County of Orange 0406/2018 at 04:32:00 PI Clerk of the Superior Court By Jeanette Tomes-hendoza, Deputy Clerk IN THE SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF ORANGE LILY MEDINA, a minor, by and through her Guardian ad Litem, CORRINA ORTEGA, and VICTOR MEDINA, an individual, Plaintiffs, VS. IRMA L. GUTIERREZ, an individual; RAYMOND M. GOMEZ, JR., an individual; REGINA GOMEZ, an individual; THE CITY OF LA HABRA, a municipality; SANTIAGO COMMUNITIES, INC., a California corporation; and DOES 1 to 50, inclusive, Defendants. Case No. 30-2017-00943941-CU-PO-CIJC [Assigned for all purposes to Honorable Walter Schwarm, Dept. C19] DEFENDANT SANTIAGO COMMUNITIES, INC’S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFFS’ FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Date: June 12, 2018 Timez 1:30 p.m. Dept: C19 [Filed Concurrently with Request for Judicial Notice In Support of Motion to Strike Plaintiff's FAC and [Proposed] Order Regarding Motion to Strike Plaintiff's FAC | Complaint Filed: September 15, 2017 Trial Date: October 26, 2018 Reservation ID: 72787556 DEFENDANT SANTIAGO COMMUNITIES, INC’S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFFS’ FIRST AMENDED COMPLAINT SS OO 0 NN NN Un B R A W N N Y MN N N N N N N Y e m e m e a e e e d e k e d eo NN A wn BRA W N = O 0 X NN YY R W TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June 12, 2018 at 1:30 p.m., or as soon thereafter as this matter may be heard, at Department C-19 Defendant Santiago Communities, Inc. (“Santiago”) will, and hereby does, move for an order pursuant to Code of Civil Procedure sections 435, 436 and 437, striking Plaintiffs Lily Medina, a minor by and through her Guardian ad Litem, Corrina Ortega, and Victor Medina (“Plaintiffs”) First Amended Complaint (“FAC”) as to: 1. The entire FAC on the basis that Plaintiff disregarded the Court’s Order on March 8, 2018 (the “Order™), by failing to file their FAC in compliance with the Order; or, in the alternative, a The Third Cause of Action for Negligence (Premises Liability) in its entirety on the basis that Plaintiff disregarded the Order, by failing to file their FAC in compliance with the Order. This Motion is made on the ground that the FAC was not filed in conformity with the laws of this State, a court rule, or order of the Court. Cal. Civ. Code §436(b). This Motion is based on this Notice and Motion, the attached Memorandum of Points and Authorities, and Request for Judicial Notice, the pleadings in this action, and any other evidence or argument that the Court may properly consider prior to issuing a ruling herein. WINGET SPADAFORA & SCHWARTZBERG LLP Dated: April 6, 2018 By: Jetizey Kagan V Christina M. Vier Attorneys for Defendant SANTIAGO COMMUNITIES, INC. 1 DEFENDANT SANTIAGO COMMUNITIES, INC’S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFFS’ FIRST AMENDED COMPLAINT SO S OO xX 9 O N n n BRA W N RX NN A N LL B L N = O 0 X N B W ND — MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND RELEVANT FACTUAL BACKGROUND On September 15, 2017, Plaintiffs Lily Medina, by and through her Guardian ad Litem, Corrina Ortega, and Victor Medina (collectively, “Plaintiffs”) filed a Complaint, alleging a single cause of action, against Defendant Santiago Communities, Inc. (“Santiago™ or “Defendant”). As Defendant intended to file a demurrer as to the Third Cause of Action in the Complaint, Plaintiff and Defendant met and conferred, pursuant to Code of Civil Procedure 430.41, on December 22, 2018. Plaintiffs agreed to amend their Complaint. On or around February 27, 2018, as the time to file an amended complaint had expired, all parties in the case entered into a Stipulation To Allow Plaintiffs To File a First Amended Complaint (the “Stipulation™). On or around March 8, 2018, the Court, by Minute Order (the “Order”) approved the Stipulation and ordered that “Plaintiffs are to file and serve their First Amended Complaint no later than March 15, 2018.” Request for Judicial Notice (“RIN”), Exh. A. The Order was served on all parties on March 12, 2018. See, /d. On March 19, 2018, Plaintiffs filed and served their First Amended Complaint (“FAC”). Plaintiffs’ untimely filing of the FAC blatantly ignores this Court’s Order. This Motion to Strike Plaintiffs’ FAC should be granted in its entirety. IL LEGAL STANDARD FOR MOTION TO STRIKE Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. Civ. Code, § 435(b)(1). The Court may, upon such motion, or at any time in its discretion, and upon terms it deems proper: (1) strike out any irrelevant, false or improper matter inserted in any pleading; or (2) 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. Civ. Code, § 436 (a), (b). The grounds for the motion to strike “shall appear” on the face of the challenged pleading, or from any other matter of which the Court is required to take judicial notice. Civ. Code, § 437(a). 1 DEFENDANT SANTIAGO COMMUNITIES, INC’S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFFS’ FIRST AMENDED COMPLAINT SS OO 0X NN O N n n Bs W N p — p d p a NS 14 15 16 17 18 12 20 el 22 23 24 25 26 2 28 III. PLAINTIFFS’ ENTIRE FAC SHOULD BE STRICKEN FOR FAILING TO COMPLY WITH A COURT ORDER The Court has both the inherent power and statutory authority to strike the entirety of a pleading not filed in conformity with a prior court order. See Stafford v. Ballinger (1962) 199 Cal.App.2d 289,297; Civ. Code § 436(b). ““[A] court is not required to tolerate a purported amended complaint which fails to amend the previous pleading, is not filed in good faith, is filed in disregard of established procedural requirements, or is otherwise violative of orderly judicial administration.” Kronsberg v. Milton K. Wershow Co. (1965) 238 Cal.App.2d 170, 173 (citing Tostevin v. Douglas (1958) 160 Cal.App.2d 321, 331). The Court’s March 8, 2018 Order explicitly required that “Plaintiffs are to file and serve their First Amended Complaint no later than March 15, 2018.” (RIN. Exh. A (emphasis added)). In direct contravention of this Order, Plaintiffs filed and served their delinquent FAC on March 19, 2018. Plaintiffs’ have not and cannot set forth good cause to support their untimely filing. The Court may properly strike the FAC in it’s entirely, or alternatively the Third Cause of Action alleged against Santiago, as a product of this deficiency. See, Lincoln Holding Corp. v. Union Indent. Co. (1933) 129 Cal. App. 399, 401 ("When plaintiff failed to amend its complaint within the time specified, the right of the plaintiff so to do ceased."); see also, Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005) 130 Cal. App. 4th 1078, 1097 ("The law is also clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting it may —of itself— be a valid reason for denial."); see also, Del Junco v. Hufnagel (2007) 150 Cal. App. 4th 789, 800 (court entered judgment against party who failed to file proper and timely papers and failed to comply with court orders). Plaintiff has deliberately disregarded the Order made by this Court, and continues to operate in an untimely fashion. Plaintiffs’ clearly cannot conform their pleadings to the procedural requirements of this Court. Given Plaintiffs’ inability to adhere to court orders and file a sufficient complaint, Plaintiffs’ FAC should be stricken in its entirety. 111 I 2 DEFENDANT SANTIAGO COMMUNITIES, INC'S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFFS’ FIRST AMENDED COMPLAINT S S OO XX 9 O N nn B R A W N N D N D N N N N NN N N r m md e t e d p m e e p d e e d © 9 4 Wn BRE W D = O D N N E W N IV. CONCLUSION For the reasons set forth herein, Santiago respectfully requests that the Court grant this Motion to Strike Plaintiffs’ First Amended Complaint in its entirety. Alternatively, Santiago respectfully requests the Court strike Plaintiffs” Third Cause of Action brought against Santiago. WINGET SPADAFORA & SCHWARTZBERG LLP Dated: April 6,2018 By: Bema A Jeffrey Kagan Christina M. Vier Attorneys for Defendant SANTIAGO COMMUNITIES, INC. ~ 9 DEFENDANT SANTIAGO COMMUNITIES, INC’S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFFS’ FIRST AMENDED COMPLAINT S S OO ® NN O N n n B R A W N BN N N N N N D N N N = e m e m e m e k p d e d p e d e a © N A A nn B R A W N = O O N Y B R A W N PROOF OF SERVICE [ am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is the office of Winget Spadafora & Schwartzberg LLP, located at 1900 Avenue of the Stars, Suite 450, Los Angeles, CA 90067. On April 6, 2018, I served the following document described as: DEFENDANT SANTIAGO COMMUNITIES, INC’S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFFS’ FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES on the interested party in this action by placing a true and correct copy thereof enclosed in a sealed envelope addressed as follows: Alexander D. Napolin Attorneys for Plaintiffs Lily Medina, Corrina Catherine R. Lombardo Ortega and Victor Medina NAPOLIN LAW FIRM, INC. 269 W. Bonita Avenue Claremont, CA 91711 James R. Touchstone Attorneys for Defendant City of La Habra Carmen Vasquez JONES & MAYER 3777 N. Harbor Blvd. Fullerton, CA 92838 X [BY MAIL] By placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Angeles, California addressed as set forth below. 1 am readily familiar with the firm’s practice of collection and processing of correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in this Declaration. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on April 6, 2018 at Los Angeles, California. / In el LAE alts Ey = —_— ] ey Cruz 1 PROOF OF SERVICE