Judge: Theresa M. Traber, Case: 23STCV27281, Date: 2024-03-15 Tentative Ruling

Case Number: 23STCV27281    Hearing Date: March 15, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 15, 2024                      TRIAL DATE: NOT SET

CASE:                         Red Target, LLC v. First Class Video Productions, LLC, et al.

CASE NO.:                 23STCV27281           

MOTION TO STRIKE ANSWER

MOVING PARTY:               Plaintiff Red Target, LLC

RESPONDING PARTY(S): Defendant Shalita Laverne Ladson, in pro per.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a breach of contract action filed on November 7, 2023. Plaintiff alleges that Defendants agreed to finance Plaintiff’s purchase of video equipment and defaulted on the payments set forth in the agreement.

Plaintiff moves to strike the unverified answer of Defendant Shalita Ladson to the verified Complaint.

TENTATIVE RULING:

Plaintiff’s Motion to Strike the Answer is GRANTED.

            Defendant Ladson’s February 13, 2024 answer is also stricken as improper on the Court’s own motion.

            Defendants shall have 20 days leave to file an Amended Answer that is verified per code and addresses each allegation in the Complaint individually.

DISCUSSION:

Plaintiff moves to strike the unverified answer of Defendant Shalita Ladson to the verified Complaint.

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Meet and Confer

Before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion to strike and file a declaration detailing their meet and confer efforts.  Code Civ. Proc., § 435.5(a).

However, an insufficient meet and confer process is not grounds to grant or deny a motion to strike.  Code Civ. Proc., § 435.5(a)(4).

The Declaration of Plaintiff’s counsel states that he emailed Defendant Ladson on January 4, 2024 to discuss the sufficiency of her answer to the Complaint, but did not receive a response. (Declaration of Barry W. Ferns ISO Mot. ¶ 7.) Plaintiff’s counsel states that he does not have Defendant’s telephone number. (Id.) Plaintiff has therefore satisfied its statutory meet and confer obligations.

Timeliness

            A party may bring a motion to strike within the time allowed to respond to a pleading. Code Civ. Proc. § 435(b); Cal. Rules of Court 3.1322(b). A motion to strike all or part of an answer to a complaint must therefore be brought within 10 days. (See Code Civ. Proc. § 430.40(b); Cal. Rules of Court 3.1322(b).) The Court has the power, however, to strike out all or any part of a pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court on its own motion. (Code Civ. Proc. § 436(b).) The Court therefore has the authority to consider the matter at any time, even after the statutory deadline has passed. CPF Agency Corp v. R&S Towing (2005) 132 Cal.App.4th 1014, 1021 overruled on other grounds in Dan’s City Used Cars Inc. v. Pelkey (2013) 569 U.S. 251.

            Defendant’s answer entitled “My Response” was filed on December 5, 2023.  Plaintiff’s motion is therefore untimely under section 435. However, the Court will exercise its authority to consider the matter despite the late filing of this motion.

Legal Standard

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.) “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.) A motion to strike can be used where the complaint or other pleading has not been drawn or filed in conformity with applicable rules or court orders.  (Code Civ. Proc., § 436(b).) This provision is for "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 (emphasis in original).)

Analysis

            Plaintiff moves to strike Defendant Ladson’s answer because it is an unverified general denial.

            Code of Civil Procedure section 431.30 states, in relevant part, that “[i]f the complaint is verified, [. . .] the denial of the allegations shall be made positively or according to the information and belief of the defendant.” (Code Civ. Proc. § 431.30(d).) Further, Code of Civil Procedure section 466 states:

When the complaint is verified, the answer shall be verified. In all cases of a verification of a pleading, the affidavit of the party shall state that the same is true of his own knowledge, except as to the matters which are therein stated on his or her information or belief, and as to those matters that he or she believes it to be true; and where a pleading is verified, it shall be by the affidavit of a party, unless the parties are absent from the county where the attorney has his or her office, or from some cause unable to verify it, or the facts are within the knowledge of his or her attorney or other person verifying the same.

. . .

A person verifying a pleading need not swear to the truth or his or her belief in the truth of the matters stated therein but may, instead, assert the truth or his or her belief in the truth of those matters “under penalty of perjury.”

(Code Civ. Proc. § 466.)

            Plaintiff’s Complaint is verified under penalty of perjury pursuant to Code of Civil Procedure section 466. (See Complaint Verification.) Defendant Ladson’s Answer, on the other hand, is not, nor does it engage with each allegation in the Complaint with specificity to affirm, deny based on facts, deny on information and belief, or deny for lack of information. (See December 5, 2023 Response.)

            In opposition, Defendant Ladson claims that she was the victim of identity theft and has no involvement with any of the other parties in this case. This is a very serious claim and is potentially a complete defense to the entire action. However, that claim does not cure the procedural defects in the Answer. The answer is therefore improper and must be stricken.

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Defendant’s Unauthorized Answer

            Defendant filed a second, unauthorized answer to the Complaint on February 13, 2024. This answer is substantially identical to the answer filed on December 5, 2023, and contains the same defects as the first, including, critically, the absence of a verification.

Leave to Amend

California law imposes the burden on the party who filed the pleading to demonstrate the manner in which they can amend their pleadings to state their claims.  (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion unless the [pleading] shows on its face it is incapable of amendment.  [Citation.]  Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

            Plaintiff requests that the Court strike the answer and immediately enter default against Defendant Ladson.  The defects in the Answer on their face appear to be the result of a lack of familiarity with the complexities of the civil justice system. In light of Defendant’s claim that she is the victim of identity fraud and is therefore not a proper Defendant, the Court finds that denying Defendant an opportunity to cure these defects would be unjust. The Court will therefore exercise its discretion to permit leave to amend.

CONCLUSION:

            Accordingly, Plaintiff’s Motion to Strike the Answer is GRANTED.

            Defendant Ladson’s February 13, 2024 answer is also stricken as improper on the Court’s own motion.

            Defendant shall have 20 days leave to file an Amended Answer that is verified per code and addresses each allegation in the Complaint individually.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  March 15, 2024                                  ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.