Judge: Michael E. Whitaker, Case: 22STCV25924, Date: 2023-01-20 Tentative Ruling

Case Number: 22STCV25924    Hearing Date: January 20, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff M.G.H., a minor, by and through guardian ad litem, Catarina Hernandez, alleges that Defendants Los Angeles Unified School District and Adalberto Vega (collectively, Defendants) failed to monitor Plaintiff’s treatment at school, which resulted in pervasive bullying by peers.  Plaintiff moves to strike 16 of Defendants’ affirmative defenses in Defendants’ amended answer.  Defendants oppose the demurrer.  Plaintiff replies.

JUDICIAL NOTICE

            The Court denies Plaintiff’s request for judicial notice of Plaintiff’s October 7, 2021 administrative claim filed against Los Angeles Unified School District, based on the fact that whether the subject administrative claim was filed against Los Angeles Unified School District is reasonably subject to dispute. 

            The Court grants Defendants’ request for judicial notice of Plaintiff’s Complaint, Defendants’ Answer, and Defendants’ Amended Answer.

ANALYSIS

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

As to Defendants’ 1^st, 3^rd, 4^th, and 5^th affirmative defenses, Plaintiff moves to strike, arguing that Defendant’s assertions of Plaintiff’s failure to comply with the California Tort Claim are false or improper as a matter of law.  However, Plaintiff relies on her request for judicial notice in support of this proposition, which the Court denied.  Consequently, Plaintiff’s arguments amount to factual assertions as to the underlying merits of the defense which are not appropriately addressed upon a motion to strike.

Plaintiff argues the remaining affirmative defenses fail to state facts sufficient to constitute a defense.  However, arguments involving the sufficiency of how each defense is pled are grounds for a demurrer, and are thus improper grounds for a motion to strike.  (See Warren v. Atchison, T. & S. F. Ry. Co. (1971) 19 Cal.App.3d 24, 41 [assertions that counts do not state sufficient facts are grounds for demurrer, not motion to strike]; see also Code Civ. Proc., § 430.20, subd. (a) [“The answer does not state facts sufficient to constitute a defense”]; cf. Code Civ. Proc., § 436.)

  Accordingly, the Court declines to rule on the remaining affirmative defenses.

CONCLUSION AND ORDER

Therefore, the Court denies Plaintiff’s motion to strike Defendants’ 1^st, 3^rd, 4^th and 5^th affirmative defenses and declines to rule on the remaining affirmative defenses.

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