2015-00177093-CL-CL

Ford Motor Credit Company, LLC vs. Suzanne M. Richardson

Nature of Proceeding: Motion to Set Aside Order Granting Motion to Strike Answer

Filed By: Richardson, Suzanne M.

Defendants Suzanne M. Richardson and Kevin J. Richardson’s (collectively, “Defendants”) motion for an order to set aside the order striking Defendants’ unverified answer to the verified Cross-Complaint is GRANTED.

This action arises from a vehicle lease agreement. Defendant Ford Motor Credit Company, LLC (“Ford”) filed a Complaint on March 26, 2015, alleging the parties entered a lease dated April 5, 2010, and that Defendants breached the lease by failing to pay excess mileage and wear and tear charges at the end of the lease term. Defendants filed a Cross-Complaint against Ford on September 22, 2017, alleging

breach of contract and conversion.

On November 27, 2017, the Court granted Ford’s unopposed motion to strike Defendants’ answer with leave to amend. The Court granted the motion on the grounds that because the Complaint was verified, Defendants were required to respond with a verified answer. (Code Civ. Proc. §§ 431.30(d)-(f), 446(a).) The Court ordered Defendants to file and serve a verified answer no later than December 11, 2017. Defendants have not filed a verified answer.

Defendants now move for relief from the November 27th order due to mistake, inadvertence, surprise or excusable neglect pursuant to Code of Civil Procedure section 473(b) and on the grounds that the order was a mistake of law pursuant to California Code of Civil Procedure section 92(b). Defendants are correct.

Code of Civil Procedure section 473(b) provides that “[t]he court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order or other proceeding. . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”

Defendants contend they did not file an opposition to Ford’s motion to strike because they did not realize it was a valid motion. Defendants argue the motion was filed by counsel (Sverson & Werson) who had not yet substituted into the case. Indeed, Ford’s initial attorney of record was the law firm of Nelson & Kennard. On October 23, 2017, the law firm of Sverson & Werson filed the motion to strike purportedly on behalf of Ford, but at that time Sverson & Werson’s substitution of attorney had not yet been entered by the clerk. Rather, Sverson & Werson attempted to file a substitution of attorney on October 19, 2017, but that filing was rejected by the clerk on October 31, 2017. Accordingly, Sverson & Werson filed an amended substitution of attorney on November 7, 2017, and gave notice to Defendants of the change on November 17, 2017.

Ford does not oppose the motion insofar as it relies on a mistake of law, specifically regarding Code of Civil Procedure section 92(b). Ford indicates it will stipulate that Defendants’ Answer to the Complaint should stand as filed. Ford only opposes the motion to the extent Defendants contend they did not have proper notice of Ford’s Demurrer or Motion to Strike. This point is irrelevant to the thrust of the motion; Ford’s motion to strike was predicated on a failure to file a verified answer. As Ford wrote in its “Introduction” to its points and authorities: “Ford Credit’s complaint in this action is verified. However, in their proposed answer, Defendants fail to verify the truth of the matters asserted therein under penalty of perjury under the laws of the State of California. This motion to strike the answer should be granted as a result of Plaintiffs’ failure to verify the answer.” (MPA, p. 3). No declaration attended the motion. Ford wholly failed to point out that its own complaint expressly set out that it was a “Limited Civil Case” not exceeding $10,000. ROA 1, p. 1. Ford’s counsel presumably was aware of CCP §92 (b) and (d), which apply to economic litigation for limited civil cases, providing, respectively, “The answer need not be verified, even if the complaint or cross–complaint is verified” and “Motions to strike are allowed only on the ground that the damages or relief sought are not supported by the allegations of the complaint.” Indeed, Ford’s counsel is under an affirmative duty “…never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”B and P § 6068 (d).

The trial court has discretion under section 473(b) based on its evaluation of the nature of the mistake or error alleged and the justification proffered for the conduct that occurred. “The general underlying purpose of section 473(b) is to promote the determination of actions on their merits.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838; accord, Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 255-256 [“‘It is well settled that appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits.’ [Citation.] Thus, ‘the provisions of section 473 of the Code of Civil Procedure are to be liberally construed and sound policy favors the determination of actions on their merits.'”].) (Austin v. Los Angeles Unified School District (2016) 244 Cal. App. 4th 918, 928.)

In the exercise of its discretion, the Court grants Defendants’ motion to set aside the Court’s November 27, 2017, minute order striking Defendants’ answer to the Cross-Complaint. Further, pursuant to Code of Civil Procedure section 92(b), an “answer need not be verified, even if the complaint or cross-complaint is verified.” Accordingly, the Court also grants the motion on the basis of mistake of law.

As Defendants’ Answer to the Complaint was stricken pursuant to the prior order, Defendants shall file a new Answer to the Complaint no later than April 12, 2018. The Court will not deem the prior filed answer sufficient, as it was erroneously stricken by previous order.