LINDER vs DALTON, et al.

24CV005410: LINDER vs DALTON, et al. 03/25/2025 Hearing on Motion to Strike Portions of Complaint in Department 53

Tentative Ruling

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-cagov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.pdf.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk

24CV005410: LINDER vs DALTON, et al. 03/25/2025 Hearing on Motion to Strike Portions of Complaint in Department 53

will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

The moving party has stated the incorrect address for Department 53 in its notice of motion. The correct address for Departments 53 and 54 of the Sacramento County Superior Court is 813 6th Street, Sacramento, California 95814. The moving party shall notify the opposing party immediately.

Defendant Ambrose Dalton’s motion to strike portions of the complaint is unopposed but DROPPED for defective service.

The proof of service states that the Amended Notice of Motion and supporting documents were served on Plaintiff Donald Linder only via electronic service. Plaintiff is not represented by counsel.

Electronic service on an unrepresented party requires the unrepresented party’s consent. (Code Civ. Proc., § 1010.6, subd. (c).) Such consent “may be given by either of the following: (i) Serving a notice on all parties and filing the notice with the court[,]” or “(ii) Manifesting affirmative consent through electronic means with the court or the court’s electronic filing service provider, and concurrently providing the party’s electronic address with that consent for the purpose of receiving electronic service. The act of electronic filing shall not be construed as express consent.” (Code Civ. Proc., § 1010.6, subd. (c)(3).)

Here, there is no indication that Plaintiff has consented to electronic service as prescribed in Code of Civil Procedure section 1010.6, subdivision (c)(3). Thus, the motion must be dropped. Defective service deprives the court of jurisdiction to act. (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509.)

While the Court need not proceed further given that it does not have jurisdiction over this motion, it notes that even if service had been proper, the motion would have been denied as untimely. Generally, a motion to strike all or a portion of a pleading must be filed within the time allowed to respond to that pleading. (Code Civ. Proc., § 435, subd. (b)(1); see CRC 3.1322(b); City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913.) Therefore, a motion to strike a complaint must generally be filed within 30 days after service of the complaint. (Code Civ. Proc., § 412.20, subd. (a)(3).)

Further, as a general matter, a defendant may not file a motion to strike after filing an answer, nor would the Court be inclined to exercise discretion to consider the merits of

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV005410: LINDER vs DALTON, et al. 03/25/2025 Hearing on Motion to Strike Portions of Complaint in Department 53

a late-filed motion based upon the Court’s own authority to strike improper matters in a pleading. (See Code Civ. Proc., § 436; CPF Agency Corp. v. R&S Towing Serv. (2005) 132 Cal.App.4th 1014, 1020-1021.) Here, the proof of service of summons evinces that Defendant was personally served with the Complaint on March 24, 2024, and she filed an Answer on April 24, 2024. Accordingly, the motion to strike is clearly untimely.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc., § 1019.5; CRC 3.1312.)