Judge: Richard S. Whitney, Case: 37-2023-00018980-CU-NP-CTL, Date: 2024-02-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 07, 2024

02/09/2024  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Non-PI/PD/WD tort - Other Motion Hearing (Civil) 37-2023-00018980-CU-NP-CTL OBTENEBRIX VS MAXWELL [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFF'S MOTION TO STRIKE ANSWER AND APPLICATION FOR ENTRY OF DEFAULT AGAINST DEFENDANTS is DENIED.

Plaintiff AEllis Obtenebrix ('Plaintiff') seeks to strike Defendants David Maxwell and Maria Maxwell's ('Defendants') answer. Pursuant to CCP section 436, the Court has discretion at any time to strike all and/or any portion of pleadings, including irrelevant, immaterial, and improper allegations. (Code Civ.

Proc., § 436.) The time to file an answer in response to a complaint is 30 days. (Code Civ. Proc., § 412.20(a).) The complaint was filed on May 4, 2023. Defendants filed a general denial answer on June 27, 2023. Plaintiff subsequently attempted to obtain a default against Defendants, which was denied as an answer was already on file.

The Court declines to strike the answer. Rather, it appears the Court may strike Plaintiff's complaint for lack of standing. Defendants' requests for judicial notice are granted, to the extent permitted. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) Plaintiff does not deny that 'AEllis Obtenebrix' is not a real person, but a name Plaintiff chose to use. Plaintiff does not deny that he has changed his legal name a number of times. It appears he acknowledges his name is 'AEllis D'Artisan.' 'Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.' (Code Civ. Proc., § 367.) Plaintiff does not identify an exception to this rule under which his situation falls. Therefore, in the absence of proof by Plaintiff that 'AEllis Obtenebrix' is Plaintiff's true legal name, the Court will strike the complaint. However, the Court grants Plaintiff ten (10) days leave to amend the complaint.

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