Judge: Joel R Wohlfeil, Case: 37-2023-00008927-CU-BC-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 13, 2023

09/15/2023  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2023-00008927-CU-BC-CTL NICHOLSON VS SHLOMO RECHNITZ [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 08/04/2023

The Motion (ROA # 56) of Plaintiff DAVID MICHAEL NICHOLSON ('Plaintiff') to STRIKE the document filed by Defendants SHLOMO RECHNITZ and PHIL PADILLA ('Defendants') entitled 'DEFENDANTS PHIL PADILLA AND SHLOMO RECHNITZ's ANSWER TO PLAINTIFFS COMPLAINT' and to REINSTATE the default judgement entered against Defendants, is DENIED.

Assuming Plaintiff failed to properly meet and confer prior to filing this Motion, '[a] determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.' Code Civ. Proc. 435.5(a)(4).

On the other hand, this Motion constitutes an improper motion for reconsideration of this Court's prior order granting the motion to set aside the entry of default. See Code Civ. Proc. 1008.

If a complaint is verified then 'the denial of the allegations shall be made positively or according to the information and belief of the defendant.' Code Civ. Proc. 431.30.

'A person verifying a pleading need not swear to the truth or his or her belief in the truth of the matters stated therein but may, instead, assert the truth or his or her belief in the truth of those matters 'under penalty of perjury.'' Code Civ. Proc. 446(a).

A verification must 'recite[] that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California.' Code Civ. Proc. 2015.5.

'The oath or declaration must be in such form that criminal sanctions of perjury might apply where material facts so declared to be true, are in fact not true or are not known to be true.' Ancora-Citronelle Corp. v. Green (1974) 41 Cal. App. 3d 146, 150.

The verification of the Complaint in this action states: 'I, David Nicholson, am the Plaintiff and Real Party in Interest to the within action. I hereby verify and certify that I have read the above statements and know them to be true, correct and certain; and as to those matters based on belief, I believe them to be true, correct and certain to the best of my knowledge and belief.' This statement is not made under penalty of perjury. The location is not specified and the law of this State is not included. This is not a proper verification such that the Complaint is effectively not verified, and a verified Answer was not required.

Calendar No.: Event ID:  TENTATIVE RULINGS

3005231 CASE NUMBER: CASE TITLE:  NICHOLSON VS SHLOMO RECHNITZ [IMAGED]  37-2023-00008927-CU-BC-CTL Calendar No.: Event ID:  TENTATIVE RULINGS

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