Motion to strike
Superior Court of the State of California County of Orange TENTATIVE RULINGS FOR DEPARTMENT N16
HON. Donald F. Gaffney
Counsel and Parties Please Note: Law and Motion in Department N16 is heard on Wednesdays at 9:00 a.m.
Date: July 8, 2026
Tentative Rulings will be posted on the Internet on the day before the hearing by 5:00 p.m. [or earlier] whenever possible. To submit on the tentative ruling, please contact the clerk at (657) 622-5616, after contacting opposing party/counsel. Prevailing party shall give notice of the Ruling and prepare the Order/Judgment for the Court’s signature if required.
NOTE: After posting of tentative rulings, the Court will not take the motion off calendar and will grant a continuance of the motion only upon stipulation of all affected parties.
If no appearances are made on the calendared motion date, then oral argument will be deemed to have been waived and the tentative ruling will become the Court’s final ruling.
# Case Name Tentative 1 Activate Clean Energy, LLC TENTATIVE RULING: vs. DMX Engineering, LLC For the reasons set forth below, Defendant and Cross-Complainant Igor Gorovenko’s motion to strike the answer by Cross-Defendants Activate Clean Energy, LLC, Rasa Energy, Inc., David Martin, William Wismann, Robert Kendall, Anthony Buda and Ernest Lee to the second amended cross-complaint is DENIED, without prejudice.
The court, on its own motion, orders the parties to meet and confer in person and/or telephonically on the 34 affirmative defenses alleged in the answer to the second amended cross-complaint within 10 days of this hearing.
To the extent that the parties do not reach an agreement to stipulate to an amended answer being filed, the court, on its own motion, extends the deadline for Cross-Complainant to file a demurrer to the answer to the second amended cross-complaint to 30 days after this hearing. Any amended answer to the second amended cross-complaint should address the deficiencies with the current answer discussed below. Any subsequently filed demurrer should address the deficiencies with the current demurrer discussed below.
An answer to a complaint shall contain: (1) the general or specific denial of the material allegations of the complaint controverted by the defendant and (2) a statement of any new matter constituting a defense. Code Civ. Proc. § 431.30
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Here, Cross-Complainant moves to strike the answer under section 436. That section states: “ A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out 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. (Code Civ. Proc. § 436.)
Cross-Complainant’s motion, however, is procedurally defective.
First, the motion is untimely. A motion to strike must be filed “within the time allowed to respond to a pleading ....” (City and County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1913, citing Civ. Proc. Code § 435, subd. (b)(1).) A person who has filed a crosscomplaint may respond to the answer of his pleading within 10 days after service of the answer. (Code of Civ. Proc. §430.40(b)). Cross- Defendants Activate Clean Energy, LLC, Rasa Energy, Inc., David Martin, William Wismann, Robert Kendall, Anthony Buda and Ernest Lee filed an answer to the second amended cross-complaint on March 9, 2026, which was served by overnight mail. Cross-Complainant did not file this motion to strike until March 24, 2026. Cross- Complainant’s motion was due, however, one day earlier on March 23, 2026 (10 days after March 9, 2026, plus 2 additional court days for overnight service).
Second, the notice is defective. “A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (Cal. R. Ct. 3.1322).
Third, Cross-Complainant purports to seek an order striking various affirmative defenses. However, the body of the motion appears to challenge the sufficiency of how the affirmative defenses are pled.
For the above reasons, the motion to strike must be denied.
Despite these procedural defects, however, the court finds that Cross- Complainant’s arguments are well taken. Cross-Defendants have asserted 34 affirmative defenses. Some of the “affirmative defenses”
alleged do not constitute new matter, but are merely defenses to Cross- Complainants’ causes of action (e.g., “Excessive Alleged Damages,” “Alleged Excessive Fines,” “Due Process,” “No Duty,” “No Breach of Duty,” etc.) Further, none of the affirmative defenses contain sufficient ultimate facts to give Cross-Complainant notice of the basis for the affirmative defense. Cross-Defendants’ affirmative defenses, as currently pled, needlessly expand the scope of this action, discovery, and the defenses that Cross-Complainant must address at trial and/or on a motion for summary judgment/summary adjudication.
As such, the court’s ruling reflects the court’s desire for the parties to informally resolve these issues, eliminate unnecessary affirmative defenses, provide sufficient ultimate facts for the affirmative defenses alleged, and narrow/streamline the scope of this action.
Moving Party to give notice.
2 Barbosa vs. TENTATIVE RULING: Prime Healthcare For the reasons set forth below, the demurrer by Defendants Peter Foundation, Himber, Larry Lanauer, and Jack Stanton to the first amended Inc. complaint is OVERRULED.
Legal Standard
A demurrer challenges the sufficiency of a pleading by raising questions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 833.) As such, the only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.)
If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) On the other hand, “a trial court does not abuse its discretion by sustaining a general demurrer without leave to amend if it appears from the complaint that under the applicable substantive law there is no reasonable possibility that an amendment could cure the complaint’s defect.” (Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486.)
In ruling on a demurrer, the trial court must accept as true all material facts properly pleaded in plaintiff’s petition, disregarding only conclusions of law and allegations contrary to judicially noticed