Motion to Strike
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# Case Name Tentative
1. 2025-1514475 The motion by Plaintiffs Matthew Toner, Lawrence Toner, William Toner vs. Toner, Pauline Toner, and Kneebumps, Inc. (“Kneebumps”) for an Aurora order striking paragraphs 7, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 22, Heights, LLC and 23, the prayer for relief paragraphs 1, 2, 3, 4, and 5, and Exhibit 1 from the Cross-Complaint filed by Defendants/Cross- Complainants Auror Heights, LLC, Ibiltit, Inc. and Bandera Land Company Inc. (collectively, “Cross-Complainants”) is DENIED.
Plaintiffs’ request for the Court to take judicial notice of the Memorandum of Tenancy in Common Agreement recorded with the County Recorder’s Office is granted; however, that does not mean the Court may take judicial notice of factual matters stated therein. (Poseidon Development, Inc. v. Woodland Lane States, LLC (2007) 152 Cal.App.4th 1106, 1117
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General legal authority
Pursuant to Code of Civil Procedure section 436, the Court may: (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.
“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).)
“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)
Standing
Cross-Complainants contend the Plaintiffs Matthew Toner, Lawrence Toner, William Toner, and Pauline Toner lack standing to bring this cross-complaint.
“A party served with a cross-complaint may within 30 days after service move, demur, or otherwise plead to the cross-complaint in the same manner as to an original complaint.” (Code Civ. Proc., § 432.10.) “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, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(1).) “A cross-complaint is generally considered to be a separate action from that initiated by the complaint.” (Ohio Casualty Ins. Group v. Superior Court (1994) 30 Cal.App.4th 444, 448; see, Shearer v. United California Theatres (1955) 133 Cal.App.2d 720, 723 [“crossactions are distinct and independent causes of action.”].)
Plaintiffs Matthew Toner, Lawrence Toner, William Toner, and Pauline Toner have not shown they may move to strike the crosscomplaint. They are not parties to this cross-complaint. Plaintiffs provide no legal authority to show they may move to strike the cross-complaint, a pleading to which they are not identified as parties. Accordingly, the motion to strike as requested by these plaintiffs is denied. (Code Civ. Proc., § 435, subd. (b)(1); see, Code Civ. Proc., § 430.10 [“The party against whom a complaint or crosscomplaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading.”].)
Paragraphs 7, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 22, and 23, the prayer for relief paragraphs 1, 2, 3, 4, and 5, and Exhibit 1
Kneebumps contends the specified paragraphs, requested prayers for relief, and Exhibit 1 should be stricken because the recorded Memorandum of Tenancy in Common Agreement (“Memorandum”) was not recorded with the Tenancy in Common Agreement (“TIC Agreement”), nor was the TIC Agreement signed, and that Cross- Complainants are not allowed to rely on TIC Agreement. Kneebumps contend the allegations are false because Cross- Complainants attempt to incorporate the unsigned TIC Agreement as an executed document to the Memorandum. Kneebumps also contends the recorded Memorandum is different than the Memorandum attached to the Cross-Complaint.
The Court notes Cross-Complainants served and filed a notice of errata regarding Exhibit 1 on March 24, 2026. (Notice of Errata, ROA No. 66.) The Court notes no difference between the Memorandum in Kneebumps’ Reply Request for Judicial Notice and the Memorandum included in the Notice of Errata. (ROA No. 66 and 410.)
Cross-Complainants allege the TIC Agreement was entered into by Cross-Complainants’ predecessors in interest, the Martins and Pro Life Toner, Inc., and was signed by Thomas P. Toner on behalf of Pro Life Toner, Inc. (Cross-Complaint, ¶ 7.) Although the TIC Agreement attached as part of the original Exhibit 1 to the Cross- Complaint was not signed, the Cross-Complainant alleges there is a signed version and also alleges the terms at issue. (Id., ¶¶ 7 and 10- 14.) In addition, the copy of the Memorandum in Cross- Complainants’ Notice of Errata does not include any copy of the TIC Agreement. Assuming the truth of the allegations in the Cross- Complaint, Cross-Complainants sufficiently alleged the existence of an executed TIC Agreement. The Court may not consider Kneebumps’ contention that Cross-Complainants have not been able to provide a fully executed copy.
Because the Court considers the allegations as true, the Court need not reach the merits of the statute of frauds or parole evidence rule arguments.
Accordingly, Kneebumps’ motion is denied.
Kneebumps shall serve and file an answer to the Cross-Complaint within 15 days.
Cross-Complainants shall give notice.