Judge: Elaine Lu, Case: 22STCV30082, Date: 2023-05-08 Tentative Ruling
Case Number: 22STCV30082 Hearing Date: May 8, 2023 Dept: 26
|
ERICKA VASQUEZ, and JOSE RAUDA Plaintiffs, v. JOSE ALMENDARES; LUIS ALMENDARES,
et al., Defendants. |
Case No.: 22STCV30082 Hearing Date: May 8, 2023 [TENTATIVE] ORDER RE: PLAINTIFFS’
MOTION TO STRIKE DEFENDANTS’ ANSWERS |
Procedural
Background
On September 15, 2022, Plaintiffs Ericka Vasquez and Jose Rauda
(jointly “Plaintiffs”) filed the instant habitability action against Defendants
Jose Almendares and Luis Almendares (jointly “Defendants”). The complaint asserts eleven causes of action
for (1) Violation of Civil Code § 1942.5, (2) Tortious Breach of the Warranty
of Habitability, (3) Private Nuisance, (4) Business and Professions Code §
17200 et seq., (5) Negligence, (6) Breach of the Covenant of Quiet Enjoyment,
(7) Intentional Influence to Vacate, (8) Intentional Infliction of Emotional
Distress, (9) Negligent Hiring, Retention, and Supervision, (10) Negligence Per
Se, and (11) Violation of Retaliatory Eviction and Anti-Harassment
Ordinance. On October 11, 2022, Jose
Almendares filed an answer. On November
8, 2022, Defendant Luis Almendares filed an answer.
On January 27, 2023, Plaintiffs filed the instant motions to strike
each of Defendants’ answers. On April 27,
2023, Defendants filed an opposition. On
April 28, 2023, Plaintiffs filed an objection to Defendants’ opposition.
The
Instant Motion is Untimely
A party “within the time allowed to
respond to a pleading may serve and file a notice of motion to strike[.]” (CCP § 435(b)(1).) The time to respond to an answer is ten days after
service of the answer. (CCP § 430.40(b);
Cal. Rules of Court, Rule 3.1322(b).) However,
this deadline to respond is extended if the answer was served by mail or
electronically. (CCP §§ 1013(a),
1010.6(a)(3)(B).) Moreover, this
deadline is automatically extended 30-days if the parties are not able to meet
and confer five days before a demurrer would be due if a declaration is filed
before the demurrer is due stating that the moving party attempted to timely
meet and confer. (CCP §
435.5(a)(2).) It is within the Court’s
discretion to consider an untimely challenge to a pleading. (Jackson v. Doe (2011) 192
Cal.App.4th 742, 750.)
Here, the instant motion is grossly
untimely. Defendant Jose Almendares’
answer states that it was served by mail on October 7, 2022. Defendant Luis Almendares’ answer states that
it was served by mail on November 1, 2022.
The instant motion was not filed until 112 days after Defendant Jose
Almendares served his answer and 87 days after Defendant Luis Almendares served
his answer. However, in light of the
minor curable defect raised in the instant motion and concurrence as such in
the opposition, the Court will consider the merits of the instant motion despite
its clear untimeliness.
Untimely
Opposition Papers
“All
papers opposing a motion so noticed shall be filed with the court and a copy
served on each party at least nine court days, and all reply papers at least
five court days before the hearing.”
(CCP § 1005(b).) This is
calculated by counting backwards from the hearing date and excluding holidays
and weekends. (CCP §§ 12-12(c).) The court may refuse to consider a late-filed
paper. (Cal. Rules of Court, Rule
3.1300(d).)
Here,
Defendants filed their opposition on April 27, 2023 – only seven court days
before the instant hearing. Accordingly,
the opposition is untimely. However, as the
instant motion is months untimely, and Plaintiffs were able to respond, the
Court will consider the untimely opposition. However, any future untimely filings by any party
may not be considered.
Legal Standard
Motions to
strike are used to reach defects or objections to pleadings that are not
challengeable by demurrer (i.e., words, phrases, prayer for damages,
etc.). (See CCP §§ 435-437.) A party
may file a motion to strike in whole or in part within the time allowed to
respond to a pleading. However, if a
party serves and files a motion to strike without demurring to the complaint,
the time to answer is extended. (CCP §§
435(b)(1), 435(c).)
A motion to
strike lies only where the pleading has irrelevant, false, or improper matter,
or has not been drawn or filed in conformity with laws. (CCP § 436.)
The grounds for moving to strike must appear on the face of the pleadings
or by way of judicial notice. (CCP §
437.)
Meet and Confer Requirement
Code of Civil
Procedure section 435.5, subdivision (a) requires that “[b]efore 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 whether an
agreement can be reached that would resolve the objections to be raised in the
motion to strike.” The parties are to meet and confer at least five days before
the date the responsive pleading is due and if they are unable to meet the
demurring party shall be granted an automatic 30-day extension. (CCP §
435.5(a)(2).) The moving party must also file and serve a declaration
detailing the meet and confer efforts. (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must
meet and confer again before a motion to strike may be filed to the amended
pleading. (Id.¿at (a).)
Here,
Defendant has sufficiently met and conferred.
(Partiyeli Decl. ¶ 3.)
Discussion
Plaintiffs contend that the answers must be stricken as
they are unverified. In opposition,
Defendants concede that the answers are unverified and request leave to amend.
“When the complaint is verified, the answer
shall be verified. In all cases of a verification of a pleading, the affidavit
of the party shall state that the same is true of his own knowledge, except as to the matters which are therein stated on his
or her information or belief, and as to those matters that he or she believes
it to be true; and where a pleading is verified, it shall be by the
affidavit of a party, unless the parties are absent from the county where the
attorney has his or her office, or from some cause unable to verify it, or the
facts are within the knowledge of his or her attorney or other person verifying
the same.” (CCP § 446(a).)
Here, the complaint is verified and
therefore any answer must also be verified.
While Defendants’ answers are both subscribed by the parties, the
answers do not include a verification under oath swearing that the information
is true of their knowledge “except as to the matters which are therein stated
on his or her information or belief, and as to those matters that he or she
believes it to be true”. (CCP §
446(a).) The answers are not properly
verified as required.
Plaintiffs’ motion to strike Defendants’ respective answers are granted.
Leave to Amend
Leave to amend must be allowed where there is a reasonable possibility of
successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)
The burden is on the plaintiff to show the court that a pleading can be amended
successfully. (Goodman v. Kennedy, supra, 18 Cal.3d at p.348; Lewis
v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.)
“[T]he failure to verify a
pleading—even where the verification is required by statute—is a mere defect
curable by amendment.” (United Farm
Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d
912, 915.) Accordingly, leave to amend
is GRANTED.
CONCLUSION AND ORDER
Based on the foregoing, Plaintiffs
Ericka Vasquez and Jose Rauda’s motion to strike Defendants Jose Almendares’
and Luis Almendares’ answers is GRANTED.
Defendants are to file verified amended
answers within ten (10) days of notice of this order.
Moving Parties are to give notice and
file proof of service of such.
DATED: May 5, 2023 _____________________________
Elaine
Lu
Judge
of the Superior Court