Judge Lynette Gridiron Winston, Case Number: 23PSCV01547, Date: 2024-05-02 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV01547, Date: 2024-05-02 Tentative Ruling

Plaintiff’s Motion to Strike Answer of Defendants Wayne Lee and Francis N. Lee

The Court GRANTS Plaintiff’s motion to strike answer of Defendant Wayne Lee aka Francis Lee. Defendant Lee must file and serve an amended verified answer to the complaint within 20 days of the Court’s order.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

This is a disability rights case. On May 22, 2023, plaintiff Orlando Garcia (Plaintiff) filed this action against defendants Wayne Lee, Frances N. Lee (collectively, Defendant Lee),[1] Rayed Abdulnour, and Does 1 through 50, alleging causes of action for violations of the Unruh Civil Rights Act and the California Disabled Persons Act. On June 29, 2023, Defendant Lee answered the complaint.

On February 21, 2024, Plaintiff moved to strike Defendant Lee’s answer to the complaint. The motion is unopposed.

“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, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Id., § 436.)

The Court notes that Plaintiff did not move to strike Defendant Lee’s answer until well after the 30-day time limit for making such motions. (Code Civ. Proc., § 435, subd. (b)(1).) Nevertheless, the Court retains the discretion to consider such late-filed motions. (See Jackson v. Doe (2011) 192 Cal.App.4th 742, 750 [trial court retained discretion to consider late-filed demurrer].) Accordingly, the Court exercises its discretion to still consider Plaintiff’s motion to strike, but admonishes Plaintiff to comply with the requirements of the Code of Civil Procedure going forward.

Per Code of Civil Procedure section 435, subdivision (a), Plaintiff was required to meet and confer with Defendant Lee in person or by telephone before bringing this motion. (Code Civ. Proc., § 435, subd. (a).) Plaintiff only indicates having sent one initial letter in July 2023 through Plaintiff’s prior counsel. (Rishi Decl., ¶¶ 3-4, 6, Ex. 1.) The Court finds this insufficient. Nevertheless, the Court may not deny a motion to strike for failure to adequately meet and confer. (Code Civ. Proc., § 435.5, subd. (a)(4).) The Court will still consider the motion, but admonishes Plaintiff to comply with the requirements of the Code of Civil Procedure going forward.

“When the complaint is verified, the answer shall be verified.” (Code Civ. Proc., § 446, subd. (a).) The failure to verify a pleading that requires verification renders that pleading subject to a motion to strike. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Plaintiff moves to strike Defendant Lee’s answer to the complaint due to its lack of verification in response to Plaintiff’s verified complaint. Plaintiff contends he asked Defendant Lee to provide a verified answer, but to no avail.

The Court finds Defendant Lee’s answer is subject to a motion to strike for failure to provide a verification. (See Perlman, supra, 99 Cal.App.3d at p. 575.) Plaintiff’s complaint is verified. (Compl., p. 9.) Defendant Lee’s answer to the complaint should also have been verified. (See Answer (6/29/23); Code Civ. Proc., § 446, subd. (a).) The Court further construes Defendant Lee’s lack of opposition to this motion as a tacit admission that Plaintiff’s argument here is meritorious. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10.)

Based on the foregoing, the Court GRANTS Plaintiff’s motion to strike Defendant Lee’s answer to the complaint.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

[1] Defendant Lee’s answer indicates that Wayne Lee and Francis Lee are the same person. (Answer (6/29/23) [“Wayne Lee, aka Francis Lee…”]) The Court therefore treats them as the same party.