Case Number: GC050394    Hearing Date: July 17, 2014    Dept: NCD

KCM Cabinetry, Inc.’s Memorandum Regarding Defendants John Snyder and Olga Snyder’s Unverified Answer to KCM Cabinetry Inc.’s Verified Complaint

TENTATIVE:
Motion regarding Answer is GRANTED with leave to file and serve an amended, verified Answer. The Notices of Verification of Answer fail to fully comply with CCP § 431.30(d).

Twenty days leave to amend Answer.

BACKGROUND:
The Complaint is verified.

The Answer filed by defendants on November 30, 2012 is not verified, and consists of a general denial and various affirmative defenses. On June 9, 2014, defendants filed Notices of Verification of Answer, submitting verifications by each defendant of the Answer.

ANALYSIS:
Procedural
Under CCP §436, the court may “upon motion made pursuant to Section 435, or at any time in its discretion” strike out “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court.”

Under CCP §435, a party may serve and file a notice of motion to strike “within the time allowed to respond to a pleading…”

Under CCP section 430.40(b):
“A party who has filed a complaint or cross-complaint may, within 10 days after service of the answer to his pleading, demur to the answer.”

Here, the Answer was served on November 30, 2012, by mail. Allowing an additional five days for service by mail, any motion to strike should have been filed by December 15, 2012. The memorandum was filed on June 9, 2014, and served on June 5, 2014, nearly a year and a half after service of the flawed Answer.

Substantive
CCP § 446(a) provides, in pertinent part: “When the complaint is verified, the answer shall be verified.”

Under CCP § 431.30(d) “if the complaint is verified…the denial of the allegations shall be made positively or according to the information and belief of the defendant…” A general denial is therefore not sufficient to controvert a verified complaint, even if the general denial is verified. See also Weil & Brown, Civ. Proc. Before Trial § 6:407.

In this case, the Complaint is verified but the Answer originally was not. In addition, the answer consists of a broad general denial, when any denial is required to be made positively or according to information and belief.

This is the initial Answer filed to the complaint, and it is not clear from the face of the pleading that it could not be successfully amended. See King v. Mortimer (1948) 83 Cal.App.2d 153 (holding that in the case of an original pleading, unless the pleading “ shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion irrespective of whether leave to amend is requested.”). Of course, the general rule regarding amendments is that they are to be liberally permitted, before, during, and even after trial in proper and appropriate circumstances, to conform to the proof and/or in the interests of justice. One opportunity to amend the Answer consistent with the discussion above shall be permitted, within 20 days of today’s date.