Judge Michael E. Whitaker, Case Number: 23SMCV02797, Date: 2023-09-26 Tentative Ruling

Judge: Michael E. Whitaker, Case: 23SMCV02797, Date: 2023-09-26 Tentative Ruling

Plaintiff Gina Teresa Sanchez (“Plaintiff”) moves to strike portions of Defendant James Dostal’s (“Defendant”) Answer. The motion is unopposed.

Code of Civil Procedure section 435.5, subdivision (a) requires, “Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” It further requires, “As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency.” (Code Civ. Proc., § 435.5, subd. (a).) “The parties shall meet and confer at least five days” prior to filing the motion to strike. (Ibid.)

The moving party shall file and serve with the motion to strike a declaration stating either of the following:

(A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion to strike, and that the parties did not reach an agreement resolving the objections raised by the motion to strike.

(B) That the party who filed the pleading subject to the motion to strike failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.

The Court previously noted that although Plaintiff references “the attached Declaration of plaintiff GINA SANCHEZ re “Meet and Confer” process,” no such declaration was previously filed. (Motion at p. 2.) The Court continued the hearing so Plaintiff could file a declaration demonstrating compliance with the meet and confer requirements. (See January 9, 2024 Minute Order.) Plaintiff filed a declaration on January 16, 2024, demonstrating meet and confer efforts. Therefore, the Court finds Plaintiff has complied with the meet and confer requirements.

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, as modified on denial of reh'g (Apr. 24, 2008).)

5. Answering paragraph 4b, Defendant made a reasonable inquiry and the information known of obtainable is insufficient to enable Defendant to admit or deny.

6. Answering paragraph 5, Defendant made a reasonable inquiry and the information known of obtainable is insufficient to enable Defendant to admit or deny.

7. Answering paragraph 7, Defendant made a reasonable inquiry and the information known of obtainable is insufficient to enable Defendant to admit or deny.

8. Answering paragraph 8, Defendant made a reasonable inquiry and the information known of obtainable is insufficient to enable Defendant to admit or deny.

9. Answering paragraph 9, Defendant made a reasonable inquiry and the information known of obtainable is insufficient to enable Defendant to admit or deny.

10. Answering paragraph 10, Defendant made a reasonable inquiry and the information known of obtainable is insufficient to enable Defendant to admit or deny.

11. Answering paragraph 11, Defendant made a reasonable inquiry and the information known of obtainable is insufficient to enable Defendant to admit or deny.

12. Answering the first cause of action for breach of contract, Defendant made reasonable inquiry and the information known of obtainable is insufficient to enable Defendant to admit or deny.

13. Answering the second cause of action for breach of contract, Defendant made reasonable inquiry and the information known of obtainable is insufficient to enable Defendant to admit or deny.

14. Answering the third cause of action for common counts, Defendant made reasonable inquiry and the information known of obtainable is insufficient to enable Defendant to admit or deny.

Plaintiff bases her motion on the fact that these responses do not admit or deny the allegations, as Plaintiff contends is required by the Code of Civil Procedure.

Code of Civil Procedure section 431.30, subdivision (e) provides: “If the defendant has no information or belief upon the subject sufficient to enable him or her to answer an allegation of the complaint, he or she may so state in his or her answer and place his or her denial on that ground.”

Here, Defendant has merely indicated a lack of information to admit or deny the allegations in the contested paragraphs, but has not placed denials based upon those grounds. Therefore, Defendant’s answer does not comply with Code of Civil Procedure section 431.30, subdivision (e).

For the foregoing reasons, the Court grants without leave to amend Plaintiff’s Motion to Strike portions of Defendant’s Answer.[1]

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

[1] A party has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A party must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a party does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].) Here, by failing to oppose the motion, the Court finds that Defendant has not met his burden.

DEPARTMENT	207
HEARING DATE	January 19, 2024
CASE NUMBER	23SMCV02797
MOTION	Motion to Strike Portions of Answer
MOVING PARTY	Plaintiff Gina Teresa Sanchez
OPPOSING PARTY	(none)