Judge: Katherine Chilton, Case: 22STLC07666, Date: 2023-04-06 Tentative Ruling

Case Number: 22STLC07666     Hearing Date: April 6, 2023    Dept: 25

PROCEEDINGS:      MOTION TO STRIKE

MOVING PARTY:    Plaintiff Stratgeic Funding Source, Inc.

RESP. PARTY:         None

MOTION TO STRIKE

(CCP §§ 435, 435.5)

TENTATIVE RULING:

Plaintiff Strategic Funding Source, Inc. Motion to Strike Defendants’ Answer is DENIED.  On the Court’s own motion, Defendants’ Answer is stricken for the reasons set forth herein.

Moving party is ordered to give notice.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[X] Correct Address (CCP §§ 1013, 1013a)                                                 OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          None                                                               [   ] Late                      [X ] None

REPLY:                     None                                                               [   ] Late                      [ X] None

ANALYSIS:

I.                Background

On November 14, 2022, Plaintiff Strategic Funding Source, Inc. (“Plaintiff”) filed a verified complaint against Defendants Visceral Abstrakts, LLC  dba On The Volley Apparel (“On The Volley”) and Elvis Romero (“Romero”) (collectively, Defendants”), alleging breach of contract and breach of guaranty.  Defendants filed a general denial with 29 affirmative defenses (the “Answer”) on December 19, 2022.   

On December 30, 2022, Plaintiff filed the instant Motion to Strike Answer (“Motion”).  No opposition was filed. 

II.              Meet and Confer Requirement

“Before 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 resolves the objections to be raised in the motion to strike.” (Code Civ. Proc. § 435.5, subd. (a).) 

Plaintiff attempted to meet and confer with Defendant Romero on December 21, 2022 and again on December 28, 2022 but no one answered the telephone and there was no opportunity to leave a voicemail as the outgoing voicemail message indicated that the mailbox was full.  (Mot. p.2; Gibbs Decl. ¶6). The Court finds that Plaintiff has satisfied the meet and confer requirement.   

III.            Legal Standard & Discussion

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (Code Civ. Proc. §§ 435; 436, subd. (a).) Motions may also target pleadings or parts of pleadings that are not filed or drawn in conformity with applicable laws, rules, or orders. (Code Civ. Proc. § 436, subd. (b).)  

Motions to strike in limited jurisdiction courts, however, may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc. § 92, subd. (d).)  

Here, in this limited civil action, Plaintiff seeks to strike certain of Defendants’ affirmative defenses on the grounds that they are irrelevant, improperly pleaded, lack specificity, and “raise new matter.” However, these objections do not contend that “the damages or relief sought are not supported by the allegations of the complaint” and therefore are not appropriate for a motion to strike in limited civil.

            Plaintiff also seeks to strike Defendants’ answer on the basis that On The Volley cannot be represented by an individual, only by counsel. Defendants’ Answer is signed by Defendant Romero on behalf of both Defendants.  Pursuant to California law, corporate entities, including limited liability companies, must be represented by counsel. (Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal. 3d 724, 729; CLD Construction, Inc. v. City of San Ramon (2004) 120 Calp.App.4^th 1141, 1145).  Accordingly, although Plaintiff cannot make a motion to strike on this basis, the Court may do so on its own motion.  The Answer as to Defendant On The Volley is hereby stricken.

            Finally, Plaintiff filed a verified complaint, which means that Defendants must file a verified answer and may not file a general denial.  (Cal. Code of Civil Procedure §§ 446, 431.30(d)).  Here, Defendants filed an unverified general denial.  Accordingly, the Answer is stricken as to both Defendants on this basis.

IV.           Conclusion & Order

For the foregoing reasons, Plaintiff’s Motion to Strike Affirmative Defenses is DENIED.  On the Court’s own motion, the Answer filed by Defendants is stricken for the reasons set forth above.  

Moving party is ordered to give notice.