Judge: Shirley K. Watkins, Case: 22VECV00060, Date: 2022-08-02 Tentative Ruling

Case Number: 22VECV00060    Hearing Date: August 2, 2022    Dept: T

            [TENTATIVE] ORDER:  The Motion to Strike Answer is DENIED.

1. Introduction

   Plaintiff Joe Vernon Releford, Jr. filed a motion to strike Defendant Randall M. Awad’s answer to Plaintiff’s complaint.

2. Notice Issue

   CCP § 1005(b) provides that “[u]nless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.”  (Code Civ. Proc., § 1005(b).)  “[I]f notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California . . . .”  (Id.)  CCP section 1010.6 provides that “[a]ny period of notice . . . , which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days . . . .”  (Id., § 1010.6(a)(4)(B).)

   According to the proof of service, Plaintiff served the motion to strike on Defendant Awad by email and mail.  As the hearing date for this motion is August 2, 2022, the deadlines for serving the moving papers were July 7, 2022 for email service and July 6, 2022 for mail service.  (Code Civ. Proc., §§ 1005(b), 1010.6(a)(4)(B).)  As Plaintiff did not serve the moving papers until July 13, 2022, Plaintiff has failed to provide adequate notice of the motion to Defendant Awad.

   The Court would generally be inclined to continue the hearing to allow for adequate notice and an opportunity for Defendant to file an opposition.  However, as discussed below, the motion must be denied.

3. Discussion

   Plaintiff moves to strike Defendant Awad’s answer on grounds that the answer is not in conformity with the law because it did not include a proof of service and no answer was served on Plaintiff.

   Plaintiff relies on CRC Rule 8.817(a) to support his argument that a proof of service must accompany the answer.  CRC Rule 8.817(a) is an appellate rule and thus does not apply to this court.  Instead, Plaintiff should have cited to CCP § 465, which provides that “[e]xcept with leave of the court, all pleadings subsequent to the complaint, together with proof of service unless a summons need be issued, shall be filed with the clerk or judge, and copies thereof served upon the adverse party or his or her attorney.”  (Code Civ. Proc., § 465.)

   A review of the Court’s records shows that a proof of service was filed on June 17, 2022 indicating Awad’s General Denial to the Complaint was served by mail on Plaintiff’s counsel that day.  It thus appears Awad filed a proof of service with his answer in compliance with CCP § 465.

   As for the failure to serve the answer on Plaintiff, it is unclear why Plaintiff did not receive a copy of the answer.  As discussed, there is a proof of service indicating the answer was served on Plaintiff on June 17, 2022.  Based on this, the Court presumes that the answer was in fact served on Plaintiff.

   Finally, even if not served, there is no statutory basis to strike an answer for failure to serve; the court would then order it to be served.

   Accordingly, the motion to strike answer is DENIED.

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             The court advises counsel that it will not tolerate incivility between opposing parties and counsel.  This is the second admonishment on this issue.  This motion should not have been made as it could have been resolved by (1) looking at the court file and (2) a telephone call between counsel.  This shall not be a high conflict case regardless of the underlying issues.  Counsel are warned of the consequences of incivility including monetary sanctions.  Counsel are ordered to review the State Bar Guidelines for Civility and the LASC Local Rules on civility.  The court requires civil meet and confer prior to filing any law and motion (excluding MSJ’s and Special Motions to Strike).  It is anticipated that the court will set an early MSC on this matter.  IDCs are required before filing a discovery motion on this case.  Counsel may set an IDC by filling out the online form.