18-CIV-05044 NORTHERN CALIFORNIA COLLECTION SERVICE, INC. VS. NOW DELIVERY SERVICE, ET AL.

NORTHERN CALIFORNIA COLLECTION SERVICE, INC. NOW DELIVERY SERVICE
STEVEN D. CRIBB PRO/PER

MOTION TO STRIKE ANSWER BY NORTHERN CALIFORNIA COLLECTION SERVICE, INC. TENTATIVE RULING:

The Motion to Strike Defendant’s Answer is continued to April 24, 2019 at 9:00 A.M. in the Law and Motion Department.

Plaintiff’s excuse for failing to comply with the meet-and-confer requirement of Code of Civil Procedure section 435.5 is based on an incorrect reading of the Code of Civil Procedure. Moving party’s Reply brief contends that the meet/confer requirement is inapplicable because the motion is pursuant to sections 128(a) and 436. Section 128(a) merely identifies the court’s general powers; it has nothing to do with a motion to strike.

Section 436 authorizes a motion to strike. However, section 435.5 provides that the moving party must meet and confer in person or by telephone before filing a motion to strike “pursuant to this chapter,” and Section 436 is part of “this chapter” (Chapter 4). Since Plaintiff’s motion is under section 436, the meet-and-confer requirement in section 435.5 applies.

Plaintiff next argues that this Court did not enforce the meet-and-confer requirement in a motion heard before section 435.5 was enacted. (See Plaintiff’s Reply at 2:4-6.) That is because, as Plaintiff notes, section 435.5 had not been enacted yet. The Court does not enforce statutes that have not been enacted.

Rather than strike Plaintiff’s motion for not being “drawn or filed in conformity with the laws of this state” (see Code of Civ. Proc. §436), the Court exercises its discretion under Code of Civil Procedure section 128(a) to continue this hearing and orders Plaintiff to meet and confer “in person or by telephone” pursuant to section 435.5. Plaintiff shall file and serve a declaration, no later than five court days before the hearing, setting forth the matters specified by Code of Civil Procedure section 435.5, subd. (a)(2)&(3).

The Court directs Plaintiff’s counsel Andre LeLievre and Steven Cribb to comply with section 435.5 in all future motions to strike, whether in this action or any other.