Judge Melvin D. Sandvig, Case 22CHCV00073 2023-03-08 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 22CHCV00073, Date: 2023-03-08 Tentative Ruling

Case Number: 22CHCV00073 Hearing Date: March 8, 2023 Dept: F47

Dept. F47

Date: 3/8/23

Case #22CHCV00073

MOTION TO STRIKE

Motion filed on 12/15/22.

MOVING PARTY: Plaintiff 5^th Street B.P., LLC

RESPONDING PARTY: Defendants Lori Banks and A Thread Ahead, Inc.

NOTICE: ok

RELIEF REQUESTED: An order striking Defendants’ 2^nd – 52^nd affirmative defenses.

RULING: The motion is denied.

On 12/2/22, Defendants Lori Banks and A Thread Ahead, Inc. (Defendants) filed their Answer to Plaintiff 5^th Street B.P., LLC’s (Plaintiff) First Amended Complaint for breach of contract. Defendants’ Answer includes 52 affirmative defenses. After attempts to meet and confer regarding the Answer went unanswered, Plaintiff filed the instant motion to strike Defendants’ 2^nd – 52^nd affirmative defenses. (See Meyers Decl.). Defendants have not opposed or otherwise responded to the motion to strike.

Plaintiff bases the instant motion on the ground that the Court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” CCP 436(a) (See Motion, p.11:13-15). Plaintiff goes on to cite authority for the proposition that “[b]are legal conclusions labeled as affirmative defenses will not survive a demurrer.” (See Motion, p.11:17-18 citing FPI Development, Inc. (1991) 231 CA3d 367, 383-84 and p.12:3-8 citing Westly (2003) 105 CA4th 1095, 1118 which holds that affirmative defenses which consist of legal conclusions are insufficient to withstand a demurrer or a motion for judgment on the pleadings).

Despite citing the foregoing authority, Plaintiff has moved to strike Defendants’ 2^nd – 52^nd affirmative defenses. Plaintiff has not cited any authority for the proposition that it is appropriate to strike affirmative defenses which fail to allege sufficient facts to state a defense, rather than demurrer thereto. In fact, CCP 430.20(a) provides that a party against whom an answer has been filed may object by demurrer on the ground that the answer does not state facts sufficient to constitute a defense. Moreover, Plaintiff fails to explain how the affirmative defenses which it argues “have no facts in support” are irrelevant, false or improper matter so as to be stricken from the Answer pursuant to CCP 436(a). (See Motion, p.11:13-15, p.12: 9-10).

Based on the foregoing, the motion is denied.