Judge: Loren G. Freestone, Case: 37-2020-00018935-CU-FR-CTL, Date: 2024-03-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 14, 2024

03/15/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Fraud Motion Hearing (Civil) 37-2020-00018935-CU-FR-CTL TAYLOR-MARTINO VS RYMAL [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Plaintiff Lula Taylor-Martino's motion to strike the answer filed by Defendants Tracey Rymal, Deanne Rymal, Donna Kramer, and Joseph Kramer is GRANTED as set forth below.

Taylor-Martino's demurrer and alternative motion for judgment on the pleadings are MOOT.

Preliminary Matters Defendants' request for judicial notice of prior orders from this case, a probate action (20-2011), and a dissolution action (D53022) is denied as unnecessary to the disposition of the pending matters. (See State Compensation Ins. Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 442.) Defendants' objection that Taylor-Martino's moving papers were served two days late is overruled.

Defendants have not shown they were prejudiced and therefore the court exercises its discretion to consider the motion on the merits. (See Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 168.) Taylor-Martino filed an 18-page opening memorandum and 11-page reply in support of her demurrer.

Taylor-Martino also filed a 27-page opening memorandum and 13-page reply in support of her motion to strike. All of these briefs are oversized. (Cal. Rules of Court, rule 3.1113(d).) The court may decline to consider future briefing that exceeds the page limitations. (See id. at rule 3.1113(g), 3.1300(d).) Analysis 'When the complaint is verified, the answer shall be verified.' (Code Civ. Proc., § 446, subd. (a).) If the answer is not verified, the plaintiff may move to strike it. (See Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575; see Code Civ. Proc., § 436, subd. (b).) Here, the complaint was verified. (ROA #1.) The answer was not verified. (ROA #27.) The answer is therefore subject to a motion to strike.

Defendants argue that even though Taylor-Martino timely moved to strike the answer at the outset of the case (ROA#29), the motion is untimely because she did not promptly re-calendar it after the lengthy stay in this case was lifted. The court declines to deny the motion on that basis. (See CPF Agency Corp. v. Calendar No.: Event ID:  TENTATIVE RULINGS

3076491  40 CASE NUMBER: CASE TITLE:  TAYLOR-MARTINO VS RYMAL [IMAGED]  37-2020-00018935-CU-FR-CTL R&S Towing (2005) 132 Cal.App.4th 1014, 1020–1021 [courts have discretion to rule on a motion to strike at any time]; see also see also DeCamp v. First Kensington Corp. (1978) 83 Cal.App.3d 268, 282–283 [unverified answer may be challenged either by way of a motion to strike or a motion for judgment on the pleadings].) Defendants also argue that even though they filed an answer, the motion should be denied because a summons was never issued and therefore an answer was not required. Although Defendants may not have been required to appear, they nonetheless did appear and submitted to the jurisdiction of the court.

The lack of a summons is therefore no excuse for failing to verify their answer. (See Tropical Inv. Co. v. Brown (1919) 45 Cal.App. 205, 210.) Conclusion The motion to strike the unverified answer is therefore granted.

As the defect is readily capable of being cured, the court grants 10 days leave to file a first amended answer. (See Perlman, supra, 99 Cal.App.3d at p. 575; accord Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.) As the entire answer is struck, it is unnecessary to address Taylor-Martino's other arguments regarding the sufficiency of the general denial or various affirmative defenses. However, leave to amend extends to those issues.

In light of this ruling, Taylor-Martino's demurrer and alternative motion for judgment on the pleadings are moot.

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