Judge: Michael E. Whitaker, Case: 22SMCV00758, Date: 2025-04-29 Tentative Ruling

Case Number: 22SMCV00758    Hearing Date: April 29, 2025    Dept: 207

TENTATIVE RULING

APPLICATION

Plaintiff Northwestern Engineering Company (“Plaintiff”) and Defendant Joseph Shemaria (“Defendant”) are adjacent property owners.  Their dispute concerns two related cases.  Case number SC128312, which was filed on November 1, 2017, involves a dispute over a portion of the pathway between the properties, located toward the front of the properties, where Plaintiff has historically kept items in storage.  Case number 22SMCV00758, which was filed on May 24, 2022, concerns a fence located on the pathway toward the back of the properties. 

Plaintiff has filed an Ex Parte Application in this case, number 22SMCV00758 to strike Defendant’s Answer and to enter default and to specially set its motion for summary adjudication for July 1, 2025.  The application is unopposed.

ANALYSIS

                          I.          Defendant’s Unsigned Answer

Plaintiff moves to strike Defendant’s Answer on the grounds that it is unsigned and therefore unverified.

On May 24, 2022, Plaintiff filed the verified Complaint for (1) quiet title to a prescriptive easement; (2) interference with secondary easement; (3) private nuisance; and (4) injunctive relief.  A complaint for quiet title must be verified.  (Code Civ. Proc., § 761.020.) 

A verified complaint may not be answered by way of a general denial.  (Code Civ. Proc. § 431.30, subd. (d); City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 476, as modified on denial of reh'g (Aug. 28, 2008).)

Furthermore, “Where a complaint is verified, […] the answer also must be verified.”  (French v. Smith Booth Usher Co. (1942) 56 Cal.App.2d 23, 29.)  “If an answer is not sufficiently verified in such a case, it may be stricken out[.]”  (Ibid.; see also Hearst v. Hart (1900) 128 Cal. 327, 328.)

 “The court may, […] at any time in its discretion, and upon terms it deems proper […] [s]trike 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.”]  (See Code Civ. Proc., § 436, subd (b).) 

On September 11, 2024, Defendant, then in pro per, filed a “verified Answer” that addressed each of the Complaint’s allegations by paragraph number, contained four affirmative defenses, and included a verification.  However, neither the Answer nor the Verification contain a signature or other electronic signature symbol on the signature line.

California Rules of Court, rule 2.257 provides the rules for electronic filings for documents signed under penalty of perjury:

When a document to be filed electronically provides for a signature under penalty of perjury of any person, the document is deemed to have been signed by that person if filed electronically provided that either of the following conditions is satisfied:

(1) The declarant has signed the document using an electronic signature and declares under penalty of perjury under the laws of the state of California that the information submitted is true and correct. If the declarant is not the electronic filer, the electronic signature must be unique to the declarant, capable of verification, under the sole control of the declarant, and linked to data in such a manner that if the data are changed, the electronic signature is invalidated; or

(2) The declarant, before filing, has physically signed a printed form of the document.  By electronically filing the document, the electronic filer certifies that the original, signed document is available for inspection and copying at the request of the court or any other party.  In the event this second method of submitting documents electronically under penalty of perjury is used, the following conditions apply:

(A) At any time after the electronic version of the document is filed, any party may serve a demand for production of the original signed document.  The demand must be served on all other parties but need not be filed with the court.

(B) Within five days of service of the demand under (A), the party or other person on whom the demand is made must make the original signed document available for inspection and copying by all other parties.

(C) At any time after the electronic version of the document is filed, the court may order the filing party or other person to produce the original signed document in court for inspection and copying by the court.  The order must specify the date, time, and place for the production and must be served on all parties.

(Cal. Rules of Court, rule 2.257(b)(2).)

            Plaintiff contends it did not discover that Defendant’s answer was unsigned until it was preparing its motion for summary adjudication.  However, Plaintiff does not demonstrate that Defendant did not physically sign and retain a printed form of the document, that Plaintiff demanded production of the original signed document, or that Defendant failed to produce a copy of the original signed document when requested.  Therefore, Plaintiff has not met its evidentiary burden to demonstrate that it is proper to strike Defendant’s Verified Answer for failure to comply with Rule 2.257(b)(2).

                        II.          Hearing Dates for Plaintiff’s MSA in Case Number 22SMCV00758

Code of Civil Procedure section 437c, subdivision (a)(3) provides that a motion for summary judgment/adjudication “shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.” 

The jury trial is currently scheduled to begin on July 28, 2025.  Thus, the statutory deadline for any motion for summary judgment/adjudication to be heard is Friday, June 27, 2025.

Plaintiff requests that its motion for summary adjudication as to its first cause of action for quiet title, which was electronically filed and served on April 11, 2025, be set for hearing on July 1, 2025, to ensure that Defendant has the requisite 81 days-notice of the motion.  The requested hearing date is only two court days later than and three calendar days shy of the 30-day statutory cut-off.

Plaintiff argues that good cause exists for the slight extension because Plaintiff intended to file its MSA with a June 26, 2025 hearing date and reserved the hearing date right away on March 31, 2025, intending to file the motion by April 6, 2025.  However, due to the court’s new reservation date policy, the reservation was automatically cancelled on April 5, 2025.  (Crump Decl. ¶¶ 7-8 and Ex. C.)

In light of the mishap concerning the court’s reservation system and the fact that the requested extension is only two court days and will not infringe upon Defendant’s 81 day notice period, and in view of counsel’s diligence in addressing the issue, the Court finds good cause exists to hear Plaintiff’s motion for summary adjudication on July 1, notwithstanding that it is only twenty-seven days prior to trial, instead of thirty.

CONCLUSION AND ORDER

            For these reasons, the Court grants in part and denies in part Plaintiff’s motion.  Finding good cause, the Court grants Plaintiff’s request to have its motion for summary adjudication heard on July 1, 2025, but denies Plaintiff’s request to strike Defendant’s answer. 

Plaintiff shall provide notice of the Court’s ruling and file a proof of service of such forthwith.

DATED:  April 29, 2025                                                        ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court