| Case | County / Judge | Motion | Ruling | Indexed | Hearing |
|---|
Motion to strike
This is an action arising from the alleged intentional sexual assault and sexual battery of plaintiff Jane Roe (Roe) by decedent Roland Alexander Wrigley (Decedent) on October 23, 2022, when Roe was 15 years old. Decedent was allegedly arrested and charged with sexual assault. He took his own life in March 2023 while in jail awaiting trial.
Roe’s guardian ad litem initiated a probate action, Estate of Roland Alexander Wrigley, (case No. 24PR196458), by filing a petition for letters of administration of decedent’s estate as a creditor of the estate. The probate court (Judge Duong) issued its order on the final distribution of the estate on April 23, 2025. That order states, in relevant part: “One (1) creditor’s claim was filed on August 30, 2024, more than five (5) months after the one-year anniversary of decedent’s date of death. . . . This claim is barred under California Code of Civil Procedure 366.2. This claim is disallowed. The estate shall not pay anything on this claim.”
Roe’s original complaint in this matter was filed on February 23, 2024. Plaintiff, through her guardian ad litem John D.M. Roe, alleged six causes of action against decedent’s estate and Doe defendants: (1) negligence; (2) intentional infliction of emotional distress; (3) sexual assault; (4) sexual battery; (5) assault; and (6) battery. Attached to the complaint as exhibit A was a copy of the January 19, 2024, petition for letters of administration.
The Estate previously demurred to the complaint and a moved for sanctions (Code Civ. Proc., § 128.7). Both were heard by this court in May 2025. The court denied the motion for sanctions, finding that the complaint could not have been considered frivolous at the time it was filed because “[i]t was only after the probate court’s final order on March 3, 2025 that an argument could be made that the complaint in this matter would have no chance of succeeding.” (May 29, 2025 order at p. 12:17-18.) The court sustained the demurrer without leave to amend as to the second, third, fourth, fifth, and sixth causes of action, finding they were time-barred under Code of Civil Procedure section 366.2.
The demurrer to the first cause of action was sustained with leave to amend on the same basis. The first cause of action contradicted the remainder of the complaint by framing Decedent’s intentional acts as the product of the “negligent” decision to become intoxicated (an intentional act in itself). (Complaint at ¶ 16.) The court noted that Roe’s opposition argument regarding the demurrer to the first cause of action was “best understood as one for leave to amend the ‘negligence’ cause of action to include a new statutory component (including Probate Code sections 550-555 and 9390), and to include greater particularity.” (May 29, 2025 order at p. 9:9-11.)
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
That was the basis for granting leave to amend. The court further noted that it had “doubts that the first cause of action can be amended without contradicting the existing factual allegations, which the court will consider on any subsequent pleading challenge.” (Id. at p. 10:3-5.) The court takes judicial notice of Judge Duong’s final distribution order as well as this court’s order on the demurrer and motion for sanctions on its own motion. (Evid. Code, § 452, subd. (d).)
The operative first amended complaint (FAC) was filed in June 2025. It states a single cause of action for negligence. The FAC contradicts factual allegations in the original complaint by alleging that Decedent “became so inebriated that he could not form a specific intent to harm” Roe. (See FAC at ¶ 9; complaint at ¶¶ 23, 30, 37, 44, and 51.) There are no 10 exhibits attached to the FAC. In August 2025, the court granted Roe’s request to substitute Rebecca Estrada (who had already been named in the FAC) for Doe 2.
At issue is a motion to strike the entire FAC brought by the Estate in August 2025. Roe opposes. The motion is unambiguously labeled a motion to strike and refers to Code of Civil Procedure sections related to motions to strike rather than those related to a demurrer. The court declines the Estate’s request, raised in the reply, that the court treat the motion as a demurrer.
LEGAL STANDARDS—MOTION TO STRIKE
Under Code of Civil Procedure section 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading, or strike out all or 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. Irrelevant matter includes (1) an allegation that is not essential to the statement of a claim or defense, (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense, and (3) a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint. (Code Civ.
Proc., § 431.10, subds. (b), (c).) The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a); City and County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1913.) In ruling on a motion to strike, the court reads the complaint as a whole, all parts in their context, and assumes the truth of all well-pleaded allegations. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.)
California Rules of Court, rule 3.1322(a) requires that “[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. Rules of Court, rule 3.1322(a).)
As with a demurrer, no extrinsic evidence can be considered. The court has considered the declaration from Estate counsel Steven Schunk only to the extent it discusses the meet and confer efforts required by statute. The court has not considered the attached exhibits. The court has not considered the declaration of Carole Okolowicz filed in support of the opposition, or its attached exhibits. While the party bringing a motion to strike is required to file a declaration describing meet and confer efforts, there is no authority permitting an opposing party to file a declaration.
DISCUSSION
The Estate’s motion seeks to strike the entire FAC, based on the sham pleading doctrine. (Notice of Motion at p. 2:3-5, citing Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408 [an appeal of a summary judgment ruling where the Court of Appeal found the sham pleading doctrine did not apply].)
A motion to strike is not a substitute for a demurrer. (Pierson v. Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342 [“[A] motion to strike is generally used to reach defects in a pleading which are not subject to demurrer.”].) Code of Civil Procedure section 436, subdivision (a), “does not authorize attacks on entire causes of action, let alone entire 11 pleadings.” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528 [citing Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281].) “Its purpose is to authorize the excision of superfluous or abusive allegations.” (Ibid.)
The Estate provides no authority for the proposition that the sham pleading doctrine can be the basis for a motion to strike, let alone a motion to strike an entire pleading. The sham pleading doctrine arises:
where a party files an amended complaint and seeks to avoid the defects of a prior complaint either by omitting the facts that rendered the complaint defective or by pleading facts inconsistent with the allegations of prior pleadings. [Citation.] In these circumstances, the policy against sham pleading permits the court to take judicial notice of the prior pleadings and requires that the pleader explain the inconsistency. If he fails to do so the court may disregard the inconsistent allegations and read into the amended complaint the allegations of the superseded complaint.
(Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384.) The rule “is intended to prevent sham pleadings omitting an incurable defect in the case.” (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 946.) The sham pleading doctrine is not a basis for a motion to strike.
The court acknowledges that its previous order sustaining the earlier demurrer noted that recasting Decedent’s alleged intentional acts that harmed Plaintiff as acts that occurred only because of Decedent’s alleged negligence both contradicts prior factual allegations and seems to be illogical. (See Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1495, 1603 [“California law and applicable precedents do not allow the recharacterization of such clearly intentional and willful sexual misconduct as merely negligent or nonwillful, so as to trigger insurance coverage.”]; Horace Mann Ins.
Co. v. Barbara B. (1993) 4 Cal.4th 1076, 1086 [“We do not sanction relabelling child molestation as negligence in order to secure insurance coverage for the plaintiff’s injuries.”].) But the Estate chose the wrong procedural vehicle for the argument it is making. The motion to strike the entire FAC must be denied. To the extent the Estate chooses to bring a different motion in the future to raise these issues, the court will consider them.
CONCLUSION
The Estate’s motion to strike the entire FAC is denied.
The court will prepare the order.
- oo0oo -
12