ALLSTATE INSURANCE COMPANY VS SEALY'S PLUMBING AND HEATING

Tentative Rulings

Case Number: 18STLC01246    Hearing Date: February 13, 2020    Dept: 26

Allstate Ins. Co. v. Sealy’s Plumbing and Heating, et al.

MOTION TO STRIKE

(CCP §§ 92, 435, 436)

TENATIVE RULING:

Plaintiff Allstate Insurance Company’s Motion to Strike the Answer is DENIED.

ANALYSIS:

Plaintiff Allstate Insurance Company a/s/o James Robertson (“Plaintiff”) filed the instant action for automobile subrogation against Defendant Sealy’s Plumbing and Heating (“Defendant”) on January 17, 2018. Defendant filed an Answer on April 2, 2018. On January 3, 2019, Plaintiff filed an Amendment to Complaint seeking to add Morrington Randy Sealy to the action as Doe Defendant 1. However, the Amendment was never approved by the Court.

On January 24, 2019, the Court granted the motion of Defendant’s counsel to withdraw from representation.

Following the Court’s order granting Plaintiff’s Motion to Compel Defendant’s responses to written discovery, Plaintiff filed the instant Motion to Strike the Answer on September 30, 2019.

When the matter came for trial on October 1, 2019, Plaintiff requested that the trial date be continued to be concurrent with the February 13, 2020 hearing on the instant Motion to Strike.

To date, Defendant has not filed an opposition to the Motion to Strike.

Legal Standard

The Motion to Strike is brought pursuant to Code of Civil Procedure section 435 and 436, which authorize a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (Code Civ. Proc., §§ 435; 436, subd. (a).) Motions to strike may also target pleadings or parts of pleadings that are not filed or drawn in conformity with applicable laws, rules or orders. (Code Civ. Proc., § 436, subd. (b).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v. Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).)

However, motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the [pleading].” (Code Civ. Proc., § 92, subd. (d).) This may fall under matters that are “improper” or “not filed or drawn in conformity with applicable laws, rules or orders.” (Code Civ. Proc., §§ 436, subd. (a)-(b).)

Finally, Code of Civil Procedure section 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).)

Discussion

As an initial matter, the Motion to Strike is procedurally defective. It is not brought within the time to respond to an Answer, which is 10 days. (Code Civ. Proc., §§ 430.40, subd. (b); 435, subd., (b)(1).) It is also not accompanied by a meet and confer declaration as required by Code of Civil Procedure section 435.5. (See Motion, Ford Decl.)

On the substantive merits, the Motion is brought on the basis that the Court has discretion to strike the Answer due to Defendant’s failure to appear at the hearings on Plaintiff’s discovery motions (held on July 2, 2019 and August 27, 2019) and failure to file papers explaining the non-appearance.

There is no basis under the aforementioned statutes to strike a pleading for a party’s failure to appear for hearings regarding discovery motions, or any other motion. Plaintiff offers no explanation as to how Defendant’s failure to appear demonstrates that the Answer is false, irrelevant, improper, or not filed or drawn in conformity with applicable laws, rules or orders. These are the only proper basis to strike a pleading under Code of Civil Procedure section 436. Nor does Plaintiff explain how Defendant’s failure to appear demonstrates that “the damages or relief sought are not supported by the allegations of the [Answer].” The Court has no discretion to strike a pleading beyond those grounds set forth in law and Plaintiff has shown no such authority for the relief requested. (Code Civ. Proc., § 436.)

Plaintiff Allstate Insurance Company a/s/o James Robertson’s Motion to Strike the Answer is DENIED.

Court clerk to give notice.