USA Bath California Remodeling, Inc. vs. David Sweat

3. CU0001813 USA Bath California Remodeling, Inc. vs. David Sweat

One of the parties apparently reserved this date for the filing of a motion; none was filed. This matter is removed from calendar.

4. CU0002305 Jason Christ v. Jordan Hannah

Plaintiff/Cross-Defendant Jason Christ’s motion to strike portions of defendant’s answer and cross-complaint is granted in part.

Meet and Confer

Defendant argues that Plaintiff failed to meet and confer prior to filing the motion to strike. Defendant appears correct. “Before filing a motion to strike pursuant to [Code of Civil Procedure sections 435 to 437b], the moving party shall meet and confer ....” Code Civ. Proc., § 435.5(a). There is no evidence that Plaintiff did do here. That said, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” Code Civ.

Proc., § 435.5(a)(4). “If, upon review of a declaration under section [435.5(a)(3)] a court learns no meet and confer has taken place, or concludes further conferences between counsel would likely be productive, it retains discretion to order counsel to meaningfully discuss the pleadings with an eye toward reducing the number of issues or eliminating the need for a demurrer, and to continue the hearing date to facilitate that effort.” Dumas v. Los Angeles County Board of Supervisors (2020) 45 Cal.App.5th 348, 355, fn.

3. Here, the Court does not believe further conferences are necessary and turns to the merits. Plaintiff shall comply with all required meet and confer requirements hereafter under the Rules of Civil Procedure.

Legal Standard

"Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof ...." Code Civ. Proc. § 435(b)(1). "The court may, upon a motion made pursuant to Section 435, ..., and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) 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.

Answer

Frivolous Claim

Plaintiff moves to strike Defendant’s “frivolous claim” affirmative defense arguing it is not an affirmative defense and that it is a legal conclusion. Point one of this argument has merit.

“An affirmative defense is ‘new matter constituting a defense’ ... and is defined as ‘[a] defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true.’ ” Morris Cerullo World Evangelism v. Newport Harbor Offices & Marina, LLC (2021) 67 Cal.App.5th 1149, 1158, 2