Judge: Joel L. Lofton, Case: 23AHCV01374, Date: 2024-06-25 Tentative Ruling
Case Number: 23AHCV01374 Hearing Date: June 25, 2024 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: June
25, 2024 TRIAL DATE: No date set.
CASE: STEPHANY GARCIA,
et al. v. JESUS DIAZ, et al.
CASE NO.: 23AHCV01374
MOTION
TO STRIKE ANSWER
MOVING PARTY: Plaintiffs Stephany Garcia and
Victor Canales
RESPONDING PARTY: None
SERVICE: OK
OPPOSITION: None
REPLY: None
RELIEF
REQUESTED
Strike the Answer filed
by Defendants Jesus Diaz and Jade Gardens, LLC, in its entirety, or strike
portions of the Answer.
BACKGROUND
On June 15, 2023, Plaintiffs Stephany
Garcia and Victor Canales (collectively, “Plaintiffs”) filed this action
against Defendants Jesus Diaz, LBPM, Jade Gardens, LLC, and Does 1 to 100,
inclusive, asserting causes of action for (1) violation of California Civil
Code section 1942.4, (2) tortious breach of the warranty of habitability, (3)
private nuisance, (4) Business and Professions Code section 17200, et seq., (5)
negligence, (6) breach of covenant of quiet enjoyment, (7) intentional
infliction of emotional distress, (8) negligence per se, (9) violation of
Consumer Legal Remedies Act, California Civil Code section 1750, et seq., and
(10) toxic environmental mold tort.
The Complaint alleges the following.
Plaintiffs are (and at all relevant times were) tenants of the residential
property located at 109 S. Almansor Street, Apartment 18, Alhambra, CA 91801
(the “Property”). (Compl., ¶ 1.) The defendants were Plaintiffs’ landlords because
they owned and managed the Property. (Compl., ¶ 3.) During their
tenancy, Plaintiffs were exposed to various substandard living conditions,
including severe cockroach infestations, inoperable windows/doors, unsanitary
and worn flooring, and dysfunctional plumbing systems. (Compl., ¶¶
24, 25.)
Plaintiffs’
Complaint is verified. (Compl., pp. 50-51.)
On February
8, 2024, Jesus Diaz and Jade Gardens, LLC (collectively, “Defendants”) filed a
joint Answer that contains a general denial, stating:
Pursuant to the
provisions of Section 431.30(d) of the Code of Civil Procedure of the State of California,
each Defendant denies generally and specifically, each and every, all and
singular, the allegations contained in said Complaint, and in each and every
cause of action therein set forth, and the whole thereof, and specifically
denies Plaintiffs have been injured and/or damaged in the amounts therein
alleged or in any other amount or amounts, or at all, by any act or omission on
the part of each Defendant.
(Answer,
p. 1:22-28.)
On March 14, 2024, Plaintiffs filed
the instant motion to strike Defendants’ Answer or, in the alternative, strike
the above general denial paragraph.
As of June 20, 2024, no opposition
to the motion has been filed.
TENTATIVE RULING
The Motion to Strike is GRANTED, with leave to
amend. Defendants Jesus Diaz and Jade Gardens, LLC are ordered to file and
serve their First Amended Answer within 30 days of this ruling.
LEGAL STANDARD
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. (Code Civ.
Proc., § 435, subd. (b)(1).)
The court may, upon a 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 California, a court rule, or an
order of the court. (Code of Civ. Proc., § 436, subds. (a)-(b).)
MEET AND CONFER
“Before filing a motion to strike pursuant to this chapter, the moving
party shall meet and confer in person, by telephone, or by video conference
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.” (Code Civ. Proc., § 435.5, subd. (a).)
Here, Plaintiffs’ counsel testifies that he contacted defense counsel,
and defense counsel promised to file a verified Answer, but no amended answer
has been filed as of March 14, 2024. (Motion, Declaration of Jacob O.
Partiyeli, ¶ 3.)
The Court finds that Plaintiffs have satisfied the meet and confer
requirement.
DISCUSSION
Plaintiffs
argue that the Defendants failed to file a verified answer to the verified
Complaint and, therefore, their entire Answer or the general denial paragraph should
be stricken.
“If the complaint is … [a
limited civil case complaint] or is not verified, a general denial is
sufficient but only puts in issue the material allegations of the complaint.” (Code Civ. Proc., § 431.30, subd. (d).)
“If the complaint is verified,
unless the complaint is … [a limited civil case complaint], the denial of the
allegations shall be made positively or according to the information and belief
of the defendant.” (Code Civ.
Proc., § 431.30, subd. (d).)
“When the complaint is
verified, the answer shall be verified.” (Code Civ. Proc., § 446, subd. (a).)
Here, the Complaint is verified,
but Defendants’ Answer is not verified. The Answer also fails to comply with
Code of Civil Procedure section 431.30, subdivision (d) because it contains a
general denial, which is improper. Defendants have not opposed the motion.
Accordingly,
the motion to strike is granted.
CONCLUSION
The Motion to Strike is GRANTED,
with leave to amend. Defendants Jesus Diaz and Jade Gardens, LLC are ordered to
file and serve their First Amended Answer within 30 days of this ruling.
Plaintiffs to give notice.
Dated: June 25, 2024 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court