County Of Sacramento vs. Kiran Rawat

2013-00145898-CU-MC

Nature of Proceeding: Motion to Strike

Filed By: Masarweh, Susan R.

Plaintiff and Cross-Defendant County of Sacramento’s (“County” or “Plaintiff”) Motion
to Strike Defendants’ Cross-Complaint for Damages filed on November 22, 2013, is
GRANTED.

County initiated this lawsuit on June 3, 2013, by filing a Complaint for injunctive relief
and seeking appointment of a receiver to abate violations of municipal codes and
public nuisance. On November 22, 2013, Defendants filed an unverified Cross-
Complaint for Damages without a proof of service. Defendants obtained a Clerk’s
entry of default as against the County with respect to the Cross-Complaint, but the
Court subsequently granted County’s Motion for Relief from Default on grounds that
the Cross-Complaint had never been properly served upon County and that no
summons had been issued with respect to the Cross-Complaint.

County questions Defendant’s authority to file papers in this action given the Court’s
finding on December 18, 2013, where the Court noted that Raj Singh has previously appeared through counsel, but now appears in pro per. The Court noted that if Raj
Singh wishes to represent himself in this action, he must file and serve a substitution of
attorneys with the Court and that at the time he had not done so and thus the Court
was not considering his motion. A substitution of attorney has now been filed but
County questions its authenticity as it believes that previous counsel, Attorney Oliver,
has not reviewed or signed any documents in this action. The Court need not resolve
the issue given the meritless nature of Defendant’s Opposition and the inadequate
proof of service appended thereto.

The Court declines to consider Defendant’s Opposition which, as pointed out by the
County Counsel, was not served on her despite a proof of service by Defendant stating
that it was. Defendant’s proof of service yet again fails to state the method of service
or the date of service, only that the declaration was signed on June 10, 2014.

The Court also declines to consider Defendant’s “Second” Opposition filed on June 20,
2014, as the applicable procedural rules do not permit “second” oppositions, and in
any event such “second” opposition was untimely.

County’s Motion to Strike the Cross-Complaint of November 22, 2013, is GRANTED.
The Cross-Complaint was unverified in violation of Code of Civil Procedure § 446,
supporting County’s motion to strike. (Zavala v. Board of Trustees (1993) 16
Cal.App.4th 1755, 1761 (“[t]he proper objection where a party fails to verify a pleading
is a motion to strike . . . .”) (citations omitted).) Further, the Court exercises its
discretion pursuant to Code of Civil Procedure § 436 to strike the Cross-Complaint as
a pleading not “drawn or filed in conformity with the laws of this state” and the rules of
court, as it was not accompanied by a valid proof of service, never properly served,
and is comprised largely of conclusory allegations and legal argument. Further, the
County was unable to promptly address the Cross-Complaint because it was never
properly served. Further, as County argues, the allegations in the Cross-Complaint
arise from the same transaction or occurrence as the causes of action in County’s
complaint — alleged Code violations occurring at the properties located at 4929 Baker
Avenue and 4590 Stockton Boulevard — and thus is a compulsory cross-complaint that
should have been filed 30 days after the service of summons in this case. (Code Civ.
Proc. §§ 426.30(a), 426.10(c).) But the Cross-Complaint was filed against the County
nearly five months after the service of summons in this case, and it is therefore
untimely and should be stricken. (Code Civ. Proc. §§ 426.30, 428.50(a) (“A party shall
file a cross-complaint against any of the parties who filed the complaint or cross-
complaint against him or her before or at the same time as the answer to the complaint
or cross-complaint.”), 412.20 (answer must be filed within 30 days after service of
summons unless an extension is obtained); Collins v. Bicknell (1919) 41 Cal.App. 291,
292 (court may in its discretion strike a pleading where it is “wholly without merit” and
“not filed until after the expiration of time granted for the filing thereof.”) Perhaps most
crucially, while the Code of Civil Procedure contains a mechanism for filing late cross-
complaints, Defendants did not attempt to utilize it: Defendants did not seek leave of
court to file their untimely cross-complaint, further supporting the motion to strike.
(Code Civ. Proc. §§ 426.50, 428.50(c).) Accordingly, for each of these reasons
independently and taken together, County’s motion to strike is GRANTED and
Defendants’ Cross-Complaint is hereby STRICKEN.