Case Number: BC389877    Hearing Date: November 07, 2014    Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
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Hearing Date: Friday, November 7, 2014
Calendar No: 8
Case Name: McFadden v. Anderson, et al.
Case No.: BC389877
Motion: Motion to Strike
Moving Party: Plaintiff Jason McFadden
Responding Party: Defendant Romayne Anderson
Notice: OK

Tentative Ruling: Motion to strike is granted.
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Background –
On 4/29/08, Plaintiff Jason McFadden filed this action against Defendants Romayne Anderson and Blake Anderson arising out of alleged uninhabitable conditions of an apartment leased by Plaintiff and Defendants’ retaliatory eviction actions. Plaintiff asserted causes of action for (1) violation of Civil Code § 1942.4, (2) violation of Civil Code § 789.3, (3) breach of the implied warranty of habitability, (4) violation of Civil Code § 1942.5(c), (5) retaliatory eviction, and (6) violation of Bus. & Prof. Code § 17200. On 7/18/08, Romayne Anderson filed an answer. On 9/30/09, this action was assigned to this Court for trial and all purposes: the Court conducted a trial on 10/1/09. On 10/9/09, the Court rendered its tentative decision in favor of Plaintiff on the 1st, 3rd, 4th, and 6th COAs in the total amount of $39,000. Judgment was entered on 10/26/09. On 2/9/10, the Court granted Plaintiff’s motion for attorney fees in the amount of $12,027.50. On 12/6/13, Plaintiff applied for a renewal of judgment. On 4/22/14, an acknowledgement of satisfaction of judgment was filed. On 8/14/14, Plaintiff filed a motion to strike the acknowledgement of satisfaction of judgment.

Motion to Strike –
Plaintiff’s motion to strike proceeds on the Court’s statutory power to amend and control its process and orders so as to make them conform to law and justice (CCP § 128(a)(8)) and inherent equity, supervisory, and administrative powers to control litigation (Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377-78). See also Neal v. Bank of America Nat’l Trust & Savings Ass’n (1949) 93 Cal.App.2d 678, 682-83 (recognizing striking pleadings from the files pursuant to the courts’ inherent power).

The acknowledgement of satisfaction of judgment was filed by Plaintiff in pro per indicating that he has accepted payment in full satisfaction of the judgment and includes a notarized declaration. Belisle Decl. ¶ 8, Ex. D. Plaintiff submits that he did not sign or file the acknowledgment of satisfaction of judgment (McFadden Decl. ¶¶ 4-5), did not authorize his attorney to do so (id. ¶ 5), did not meet with any notary concerning it (id. ¶ 6), and has received no payment from Romayne Anderson (id. ¶ 9).

In opposition, Romayne Anderson argues that the notary’s declaration is presumed to have properly complied with law. See Civil Code § 1185. Romayne Anderson submits the declaration of the notary, Rafael Mendoza, who provides a cover letter stating that Plaintiff came to notarize the acknowledgement of satisfaction of judgment which was witnessed by Mark Wiggins. Mendoza Decl. ¶ 3, Ex. A.

However, Plaintiff’s declaration denying that he ever signed the acknowledgement of satisfaction of judgment is sufficient to shift the burden of proof to Romayne Anderson and/or Mr. Mendoza. Luttrell v. Columbia Cas. Co. (1934) 136 Cal.App. 513, 515. This shifted burden has not been carried. First, Mr. Mendoza’s declaration subtly does not state under penalty of perjury that Plaintiff appeared before him to sign the acknowledgement of satisfaction of judgment as witnessed by Mark Wiggins: it only states that attached is a true copy of a cover letter and journal of notarial acts (Mendoza Decl. ¶ 3). Therefore, Mr. Mendoza has failed to prove that Plaintiff signed the acknowledgement of satisfaction of judgment. Second, the Court notes that notwithstanding Mr. Mendoza’s assertions in his cover letter (which are not verified) that Plaintiff appeared before him, the notarial journal shows only that Mark Wiggins appeared as “representative” and includes no identifying information for Plaintiff except his last known address. Therefore, Plaintiff’s evidence disputing the truthfulness of the acknowledgement of satisfaction of judgment has not been disputed. The motion to strike is granted.

To the extent Romayne Anderson submits evidence that she retained and paid a consultant named Roger Taylor to satisfy or remove the judgment against her and that Roger sent her a release signed by Plaintiff (Romayne Anderson Decl. ¶¶ 2-13, Opp’n Exs. B-D), this is insufficient to establish that Plaintiff in fact executed the acknowledgement of satisfaction of judgment or was paid. Notably, Romayne Anderson has submitted a supplemental declaration in which she states that she has no information as to whether the acknowledgement of satisfaction of judgment is forged except that it was notarized and Roger Taylor represented to her that the documents were authentic. Romayne Anderson Supp. Decl. ¶¶ 3-8.

The Court notes that in granting the motion to strike, the Court is not making any determination as to fault or liability in connection with the acknowledgment of satisfaction of judgment. Such issues are beyond the scope of this motion and action.