Vivian v. MHCC, Inc.

Rutter Group 2026) ¶ 7:166.1, citing Code of Civ. Proc. § 435, subd. (b) and Cal. Rules of Court, rule 3.1322(b).)

As to the verified answer filed on February 20, 2026, it is a timely amendment to the original answer. (Jenssen v. R.K.O. Studios (1937) 20 Cal.App.2d 705, 707-708 [the failure to verify an answer in response to a verified complaint “amounted to no more than a defect in pleading” which is not jurisdictional]; Natkin v. California Unemployment Ins. Appeals Bd. (2013) 219 Cal.App.4th 997, 1011- 1012 [failing to verify an answer is a defect curable by amendment].) “A party may amend its pleading once without leave of court at any time before the answer, demurrer, or motion to strike is filed . . ..” (Code of Civ. Proc. § 472, subd. (a).) Here, Defendant filed the verified answer before Plaintiffs filed the motion to strike and thus filed the amended pleading as a matter of right.

Even if the verified answer is not construed as an amendment (which it is), the Court exercises its discretion to deny the motion to strike. There is no prejudice to Plaintiff as the case is still in the pleading stages and no trial date has been set, Defendant filed a verified answer before any default or judgment has been entered, Defendant filed a cross-complaint that raises the same issues in the verified answer, and striking the answer will only delay the case.

The Court also denies Plaintiff’s alternative request for judgment on the pleadings. The cases upon which Plaintiffs rely are over 100 years old, and judgment on the pleadings granted where the answer was unverified. (See e.g., Consolidated Music Co. v. Morrison (1916) 30 Cal.App.303; Stockton Lumber Co. v. Blodget (1906) 3 Cal.App. 94; Hearst v. Hart (1925) 128 Cal.327; McCullough v. Clark (1871) 41 Cal. 298.) Here, Plaintiffs did not timely move to strike the unverified answer and the subsequent verified answer is a timely amendment.

The motion is therefore DENIED in its entirety.

Counsel for Defendant shall give notice of this ruling. 3 Vivian v. Before the Court is a motion for sanctions pursuant to Code of Civil MHCC, Inc. Procedure section 128.5 filed by plaintiffs Scott Vivian and Pacific Construction Management International, LLC (Plaintiffs) against defendant Ohio Security Insurance Company (Defendant). For the reasons set forth below, the motion is DENIED.

Code of Civil Procedure section 128.5, subd. (a) provides that: “[a] trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” Frivolous means either 1) “totally and completely without merit” or 2) “for the sole purpose of harassing an opposing party.” (Code of Civ. Proc. § 128.5, subd. (b)(2).) Section 128.5 requires the responding party acted in “subjective bad faith,” that is, personally intended to use improper tactics. (In re Marriage of Sahafzadeh- Taeb & Taeb (2019) 39 Cal.App.5th 124, 134.) A motion is

“frivolous” or in “bad faith” where “any reasonable attorney would agree [it] is totally devoid of any merit,” i.e., lacking any basis in statutory or case law, or without any necessary evidence to support it. (Karwasky v. Zachay (1983) 146 Cal.App.3d 679, 681.)

Here, Plaintiffs failed to show the motion at issue was frivolous and/or failed to produce any evidence of bad faith. Though Defendant’s position that it did not need to comply with the 21-day safe harbor rule was rejected and Defendant’s reliance on Changsha Metro Group Co., Ltd. v. Xufeng (2020) 57 Cal.App.5th 1 was misplaced, it cannot be said the motion was totally devoid of any merit. The motion is therefore DENIED.

Defendant’s request for attorney fees is also DENIED. “If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion.” (Code of Civ. Proc. § 128.5, subd. (f)(1)(C).) Here, Defendant’s sanctions motion was not “frivolous” but it lacked merit. Defendant had the opportunity to withdraw the sanctions motion after Plaintiff served the 21-day safe harbor provision but instead opted to pursue the meritless motion.

Counsel for Defendant shall provide notice of this ruling. 4 National The motion to set aside dismissal and enter judgment filed by Collegiate plaintiff National Collegiate Student Loan Trust 2007-2 (Plaintiff) Student Loan against defendant Jessica Serrao (Defendant) is CONTINUED to Trust 2007-2 October 5, 2026, at 2:00 p.m. in Department N17. v. Serrao The notice of motion lists an incorrect address for the hearing. Although the notice of motion correctly states the date and time of the hearing and that the matter will be heard in Department N17, the notice incorrectly lists the court address as 700 Civic Center Drive West, Santa Ana, CA, and the caption incorrectly states the justice center is Complex Justice Center. Due to these discrepancies, the Court will continue the hearing as stated above to ensure Defendant receives proper notice of the hearing on this motion.

Plaintiff is ordered to file an amended notice of motion and proof of service thereof showing Defendant was provided with timely notice of the correct date, time and location of the new hearing.

Plaintiff is ordered to give notice of this ruling. 5 Kennedy vs. Before the Court at present is the Special Motion to Strike Cross- Maksoud Complaint, etc., filed on 6/17/25 by Dr. Charbel Maksoud (“Maksoud”), as to the Cross-Complaint filed on 5/18/26 by Alexandre Sadek (“Sadek”).

Maksoud has failed to show that the Motion was properly served. The proof of service presented with the Motion (ROA 90) fails to show that the Motion was duly served on all parties who have appeared in the action, or that service was properly effectuated on Sadek by a means other than electronic service, as a self- represented party may not be served electronically unless such service has been expressly consented to. (See C.C.P. §§ 1010.6(c),