Judge: Michael E. Whitaker, Case: 23SMCV00171, Date: 2023-08-17 Tentative Ruling

Case Number: 23SMCV00171    Hearing Date: September 20, 2023    Dept: 207

TENTATIVE RULING

MOTION

On January 12, 2023 Plaintiff Brian Whitaker (“Plaintiff”) filed a verified complaint against Defendant Sam’s Bagels (“Defendant”), bringing claims under the Unruh Civil Rights Act and the California Disabled Persons Act, alleging that Sam’s Bagels failed to comply with the accessibility requirements of the Americans with Disabilities Act.

Plaintiff now moves to strike Defendant’s answer to the verified complaint, on the basis that the answer is unverified.  Defendant has not opposed the motion.

ANALYSIS

1. MOTION TO STRIKE

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.)

            Subdivision (b) of Code of Civil Procedure, section 436 “authorizes the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed.”  (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.) 

            Plaintiff filed the verified complaint on January 12, 2023.  Defendant was served by substitute service on March 20, 2023.  Defendant demurred and moved to strike the entire complaint on May 19, 2023.  On June 30, 2023, the Court overruled Defendant’s demurrer, denied Defendant’s motion to strike, and ordered Defendant to file an answer to the complaint within 10 days of the June 30 order.  (June 30, 2023 Minute Order.)  On July 19, 2023, Defendant answered the complaint via a general denial, and asserted affirmative defenses.  The answer was not verified, and no verification has been subsequently filed.

            The Court finds several procedural defects with the answer.  First, Defendant was ordered to answer the complaint within 10 days of the June 30, 2023 order, making the answer due on or before July 10, 2023.  But Defendant did not file the answer until July 19, 2023.  Thus, the answer is untimely.

            Second, 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.)

            Third, the answer is unverified, and Defendant has not subsequently filed a verification.  “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.)

            Thus, the Court finds Defendant’s answer is procedurally defective.

CONCLUSION AND ORDER

The Court grants Plaintiff’s unopposed motion to strike Defendant’s answer pursuant to Code of Civil Procedure 436 as procedurally defective, and orders Defendant’s answer stricken in its entirety. 

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

DATED:  September 20, 2023                                               ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court