Motion to Strike
34-2021-00304799-CU-NP-GDS: Scott Smith vs. John Jurin 11/02/2023 Hearing on Motion to Strike in Department 53
Tentative Ruling
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34-2021-00304799-CU-NP-GDS: Scott Smith vs. John Jurin 11/02/2023 Hearing on Motion to Strike in Department 53
will be forward the form to the Court Reporters Office and an official reporter will be provided.
TENTATIVE RULING
The motion of in pro per Plaintiff Scott Smith (Plaintiff) to strike in pro per Defendant John Jurins (Defendant) unverified answer is DENIED as untimely.
On July 23, 2021, Plaintiff filed a Verified Complaint for Damages (Verified Complaint). As Plaintiff seeks more than $25,000 in damages from Defendant, this action was classified as an unlimited civil case. On July 22, 2022, Defendant filed an answer utilizing JCC Form PLD-050 for a general denial. Defendant attached 4 pages to the answer asserting new allegations.
Ordinarily, a general denial is a sufficient answer. (Code Civ. Proc. § 431.30(b)(1)-(c).) However, when a plaintiff files a verified complaint in an unlimited civil case, as is the case here, the allegations of the verified complaint may be controverted only be alleging a separate denial of each allegation in the complaint, either positively or according to information and belief. (Code Civ. Proc. § 431.30(d).) Further, where the complaint is verified, the answer must also be verified. (Code Civ. Proc. § 446.)
Pursuant to Code of Civil Procedure §§ 435 and 436, Plaintiff moves to strike the entire answer on grounds it is unverified and therefore was not filed in conformity with the laws of this state. Plaintiff cites to Hearst v. Hart (1900) 128 Cal. 327 as authority that when an unverified answer is filed in response to a verified complaint, the plaintiff may either move to strike the unverified answer to for judgment on the pleadings.
However, Plaintiff overlooks the requirement in Code of Civil Procedure § 435 that a motion to strike a pleading, with one exception not applicable here (i.e., where a motion to strike is brought as part of a motion for judgment on the pleadings), must be made within the time allowed to respond to a pleading. Relatedly, Code of Civil Procedure § 430.40(b) addresses the time in which a party must demur to an answer as within 10 days after service of the answer to his pleading. Thus, it follows that where a party chooses to file a motion to strike an answer, it must be filed within 10 days of service of the answer. Because the instant motion was filed over a year after service, the motion is untimely. The motion is therefore denied on such grounds.
The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.