Judge: Robert S. Draper, Case: 22STCV15170, Date: 2023-04-25 Tentative Ruling
Case Number: 22STCV15170 Hearing Date: April 25, 2023 Dept: 78
Superior Court of California
County of Los Angeles
Department 78
FRANK MARIN,
Plaintiff,
vs.
SHELLEY CHEUNG, et al.,
Defendants.
Case No.: 22STCV15170
Hearing Date: April 25, 2023
[TENTATIVE] RULING RE:
PLAINTIFF FRANK MARIN’S MOTION TO STRIKE THE UNVERIFIED ANSWER.
Plaintiff Frank Marin’s Motion to Strike the unverified answer is GRANTED.
Defendants Shelley Cheung and Nelson Cheung are granted leave to amend the Answer. As Defendant filed a First Amended Verified Answer on December 12, 2021, that Answer shall serve as Defendants’ operative Answer.
Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.
FACTUAL BACKGROUND
This is an action for uninhabitability of a rental unit. The Complaint alleges as follows.
Plaintiff Frank Marin (“Plaintiff”) resided in residential property (the “Subject Property”) owned, managed and controlled by Defendants Shelley Cheung and Nelson Cheung (together “Defendants”). (Compl. ¶ 3.) During Plaintiff’s tenancy, the Subject Property suffered from a number of habitability defects, including cockroach infestation, mold contamination, dysfunctional plumbing systems, inoperable heating, holes in the ceiling, inoperable windows, deficient fire protection systems, inadequate ventilation, deteriorated flooring, walls, ceilings, and cabinets. (Compl. ¶ 18.) Plaintiff complained to Defendants about these defects, but Defendants failed to remedy them. (Compl. ¶ 24.)
PROCEDURAL HISTORY
On May 6, 2022, Plaintiff filed the Complaint asserting ten causes of action:
1. Violation of California Civil Code § 1942.4;
2. Tortious Breach of the Warranty of Habitability;
3. Private Nuisance;
4. Business and Professions Code § 17200, et seq.;
5. Negligence;
6. Breach of Covenant of Quiet Enjoyment;
7. Intentional Influence to Vacate;
8. Intentional Infliction of Emotional Distress;
9. Premises Liability; and,
10. Violation of Retaliatory Eviction and Anti-Harassment Ordinance.
On July 19, 2022, Defendants filed a Demurrer to the Complaint. That Demurrer was overruled.
On December 6, 2022, Defendants filed an Answer.
Also on December 6, 2022, Defendants filed a Cross-Complaint against Plaintiff asserting three causes of action:
1. Breach of Contract;
2. Fraud; and,
3. Negligence
On December 13, 2022, Plaintiff filed the instant Motion to Strike the Unverified Answer to the Verified Complaint.
On December 21, 2022, Defendants filed the Amended Verified Answer .
On December 27, 2022, Defendants filed an Opposition.
As of April 20, 2023, no Reply has been filed.
DISCUSSION
I. MOTION TO STRIKE
Plaintiff moves to strike Defendants’ Unverified Answer to the Complaint.
The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike 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. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)
Here, Plaintiff contends that Defendants Answer was unverified; Defendants’ answer was required to be verified under Code of Civil Procedure section 431.30(d).
A defendant's answer to a verified complaint must contain a specific denial to each allegation of the complaint or a denial according to the defendant's information and belief. (CCP § 431.30(d); Fish v. Redington (1866) 31 Cal. 185, 194.) Thus, if a complaint is verified, the plaintiff can compel the defendant to deny specifically each separate allegation. (San Francisco Gas Co. v San Francisco (1858) 9 Cal. 453, 466.)
In Opposition, Defendants concede that the Answer was improperly filed unverified, but argue that Plaintiff failed to properly indicate that the Complaint was verified. Additionally, Defendants argue the point is now moot as Defendants have now filed a Verified Answer.
While the Court finds that the issue is now moot, Defendants may only file an Amended Answer without leave of the Court within ten days of the filing of the initial Answer. (See Tingley v. Times Mirror Co. (1907) 151 Cal.1, 9-11; CCP section 430.40(b).) As Defendants exceeded that time in filing the Amended Answer, leave from the Court was necessary to file the Amended Answer.
Accordingly, Plaintiff Frank Marin’s Motion to Strike the Unverified Answer is GRANTED. Defendants are granted leave to amend the Answer, which the Court shall consider satisfied by the Amended Verified Answer filed on December 21, 2022.
Finally, the Court acknowledges that there is some dispute as to whether Plaintiff’s Counsel properly engaged in the meet and confer process before filing the instant motion. While the Court does not wish to engage in a protracted debate about who said what when, the Court emphasizes that the instant matter could have easily been resolved informally by stipulation.
Moving forward, the Court expects counsel to work cooperatively to avoid unnecessary motion practice such as this.
CONCLUSION
Plaintiff Frank Marin’s Motion to Strike the Unverified Answer is GRANTED. Defendants are granted leave to amend the Answer, which the Court shall consider satisfied by the Amended Verified Answer filed on December 21, 2022.
DATED: April 25, 2023
____________________________
Hon. Jill T. Feeney
Judge of the Superior Court
