Judge: Lynette Gridiron Winston, Case: 24PSCV03920, Date: 2025-04-02 Tentative Ruling

Case Number: 24PSCV03920    Hearing Date: April 3, 2025    Dept: 6

CASE NAME:  Jose Madriz v. New Age Kaleidoscope, et al. 

Plaintiff’s Demurrer and Motion to Strike Portions of Defendant CSCCC Corp.’s Answer 

TENTATIVE RULING 

The Court GRANTS Plaintiff’s motion to strike the entire answer of Defendant CSCCC Corp. with 20 days’ leave to amend. The Court further grants the motion to strike Paragraphs 5, 8, and 10 with 20 days’ leave to amend. 

The Court OVERRULES the demurrer to the Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth and Fifteenth affirmative defenses.       

The Court SUSTAINS the demurrer to the First and Fourth affirmative defenses with 20 days’ leave to amend. 

The Court SUSTAINS the demurrer to the Eighth affirmative defenses without leave to amend. 

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

BACKGROUND 

This is an ADA/Unruh Civil Rights Action case. On November 14, 2024, plaintiff Jose Madriz (Plaintiff) filed this action against defendants New Age Kaleidoscope, LLC (New Age), CSCCC Corp. (CSCCC) (collectively Defendants), and Does 1 through 10, alleging causes of action for violation of the Americans with Disabilities Act and Unruh Civil Rights Act. On January 16, 2025, New Age filed a verified answer. On January 17, 2025, CSCCC filed a verified answer. 

On February 27, 2025, Plaintiff moved to strike CSCCC’s verified answer to the verified complaint, and alternatively demurred to various affirmative defenses asserted therein. CSCCC did not oppose the motions. 

LEGAL STANDARD – Motion to Strike 

            “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.) 

PRELIMINARY ISSUES – Motion to Strike 

            The Court notes that Plaintiff combined the motion to strike and demurrer into one motion, which is improper. Motions to strike and demurrers are separate motions with their own unique procedural requirements. (See, e.g., Code Civ. Proc., §§ 430.10, 435; Cal. Rules of Court, rules 3.1320, 3.1322.) The Court will still consider the motion to strike and demurrer, but admonishes Plaintiff to comply with the requirements of the Code of Civil Procedure and California Rules of Court going forward. 

            The Court further notes that Plaintiff’s motion to strike seeks to strike inconsistent responses as it pertains to paragraphs 5, 8, and 10 of CSCCC’s verified answer, but Plaintiff’s notice of motion does not specify those paragraphs. (See Notice; Cal. Rules of Court, rule 3.1322, subd. (a).) The Court will still consider the motion to strike, but further admonishes Plaintiff to comply with the requirements of the California Rules of Court going forward. 

DISCUSSION – Motion to Strike 

Meet and Confer 

Per Code of Civil Procedure section 435.5, subdivision (a), Plaintiff was required to meet and confer in person, by telephone, or by video conference before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) The Court finds Plaintiff’s efforts to meet and confer sufficient. (Johnson Decl., ¶¶ 7-8, 14.) 

Defective Verification 

“A complaint alleging a construction-related accessibility claim… shall be verified by the plaintiff. A complaint filed without verification shall be subject to a motion to strike.” (Code Civ. Proc., § 425.50, subd. (b)(1); see Zavala v. Board of Trustees (1993) 16 Cal.App.4th 1755, 1761 [party may move to strike unverified answer where verification is required].) “When the complaint is verified, the answer shall be verified. In all cases of a verification of a pleading, the affidavit of the party shall state that the same is true of his own knowledge, except as to the matters which are therein stated on his or her information or belief, and as to those matters that he or she believes it to be true; and where a pleading is verified, it shall be by the affidavit of a party, unless the parties are absent from the county where the attorney has his or her office, or from some cause unable to verify it, or the facts are within the knowledge of his or her attorney or other person verifying the same…. When a corporation is a party, the verification may be made by any officer thereof.” (Code Civ. Proc., § 446, subd. (a).) 

Plaintiff moves to strike CSCCC’s answer in its entirety on the grounds that CSCCC’s verification is defective. Plaintiff contends that although a verified answer has been provided, the verification does not identify the signatory or their affiliation with CSCCC, but instead identifies the signatory as just a party to the action. Plaintiff contends this is demonstrably false, as both Defendants are business entities. Plaintiff contends that the verification cannot be reviewed for sufficiency. Plaintiff contends the statement of verification is clearly false, so there is no telling who signed it. 

The Court agrees with Plaintiff that the verification attached to CSCCC’s answer is defective. Since this is an action based on a construction-related accessibility claim, the complaint needed to be verified. (Code Civ. Proc., § 425.50, subd. (b)(1).) The complaint here is verified, so CSCCC’s answer also needed to be verified. (Id., § 446, subd. (a).) CSCCC did attach a verification to its answer, but that verification only states in a conclusory manner that the signatory is a party to this action without providing any identifying information or any other means to determine who signed it. (See Answer (1/17/25).) The signature is also illegible, which just reinforces the inability to determine who signed the verification. (Answer (1/17/25).) Moreover, given that CSCCC is a business entity, the verification needed to have been signed by someone who had authority to act on behalf of CSCCC. (See Code Civ. Proc., § 446, subd. (a).) The verification does not provide any information for determining in what capacity the signatory signed the verification or whether the signatory even had the authority to sign it on behalf of CSCCC. (See ibid.; Answer (1/17/25).) Accordingly, CSCCC’s answer is not properly verified and is therefore subject to a motion to strike. 

Based on the foregoing, the Court GRANTS Plaintiff’s motion to strike CSCCC’s answer in its entirety with 20 days’ leave to amend. 

Paragraphs 5, 8, and 10 

Although the Court granted the motion to strike to the entirety of CSCCC’s answer, the Court finds Plaintiff’s arguments with respect to Paragraphs 5, 8, and 10 of CSCCC’s answer to also be meritorious. Paragraphs 5, 8 and 10 appear to be contradictory as to the ownership of the subject property. Accordingly, CSCCC  should review and correct Paragraphs 5, 8, and 10 when it amends it’s answer. The Court grants the motion to strike Paragraphs 5 and 8 with 20 days’ leave to amend. 

LEGAL STANDARD – Demurrer

            A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds:

(a) The answer does not state facts sufficient to constitute a defense.

(b) The answer is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.

(Code Civ. Proc., § 430.20.)

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (Donabedian).) It is not the function of the demurrer to challenge the truthfulness of the pleading; and for purposes of ruling on the demurrer, all facts pleaded in the pleading are assumed to be true. (See ibid.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

PRELIMINARY ISSUE – Demurrer

            The Court notes that Plaintiff’s notice of demurrer does not state each ground for the demurrer in a separate paragraph or identify the affirmative defenses to which it applies. (Notice, p. ii; Cal. Rules of Court, rule 3.1320, subd. (a).) The Court will still consider the demurrer, but admonishes Plaintiff to comply with the requirements of the California Rules of Court going forward.

DISCUSSION – Demurrer 

Meet and Confer 

Per Code of Civil Procedure section 430.41, subdivision (a), Plaintiff was required to meet and confer in person, by telephone, or by video conference before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Plaintiff’s efforts to meet and confer sufficient. (Johnson Decl., ¶¶ 7-8, 14.) 

Affirmative Defenses 

An answer may include a general denial, specific denial, or a statement of any new matter constituting an affirmative defense. (Code Civ. Proc., § 431.30.) " 'The phrase "new matter" refers to something relied on by a defendant which is not put in issue by the plaintiff. [Citation.] Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as "new matter." ' " (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812.) "Such 'new matter' is also known as 'an affirmative defense.' " (Ibid.) "Affirmative defenses must not be pled as 'terse legal conclusions,' but 'rather . . . as facts "averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint." ' " ( Id. at pp. 812-813.) 

"Unlike the usual general demurrer to a complaint the inquiry is not into the statement of a cause of action. Instead, it is whether the answer raises a defense to the plaintiff's stated cause of action." (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879-880.) 

Many of Plaintiff’s challenges attack the truthfulness of the affirmative defense, or attack affirmative defenses which simply respond to the allegations of the complaint, which are improper on a demurrer. Therefore, the Court OVERRULES the demurrer to the Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth and Fifteenth affirmative defenses.       

Defendant CSCCC has not pled sufficient facts to support the First and Fourth affirmative defenses. Therefore, the Court SUSTAINS the demurrer to the First and Fourth affirmative defenses with 20 days’ leave to amend. 

Defendant CSCCC has asserted affirmative defense that is not available against Plaintiff’s claims. Therefore, the Court SUSTAINS the demurrer to the Eighth affirmative defense without leave to amend. 

CONCLUSION 

The Court GRANTS Plaintiff’s motion to strike the entire answer of Defendant CSCCC Corp. with 20 days’ leave to amend. The Court further grants the motion to strike Paragraphs 5, 8, and 10 with 20 days’ leave to amend. 

The Court OVERRULES the demurrer to the Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth and Fifteenth affirmative defenses.       

The Court SUSTAINS the demurrer to the First and Fourth affirmative defenses with 20 days’ leave to amend. 

The Court SUSTAINS the demurrer to the Eighth affirmative defenses without leave to amend. 

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