Case Number: BC671468 Hearing Date: April 24, 2019 Dept: 4A

Motion to Strike without Demurrer

The court considered the moving, opposing, and replying papers.

BACKGROUND

On August 8, 2017, plaintiff Sundee Rivers (“Plaintiff”) filed a complaint against defendants Aaron Werstine, Kerry Werstine, and Dr Pepper Snapple Group, Inc. (“Defendants”) alleging motor vehicle and general negligence for an automobile collision that occurred on August 13, 2017.

On August 24, 2017, defendant Dr Pepper Snapple Group, Inc. (“Opposing Defendant”) filed an answer to Plaintiff’s complaint through the Law Offices of Bassett, Discoe, McMains & Kargozar.

On October 10, 2017, Opposing Defendant filed a second answer to Plaintiff’s complaint through the Law Office of Steven D. Levine.

On March 21, 2018, the Law Office of Steven D. Levine filed a notice of errata stating it erroneously stated it represented Opposing Defendant.

On March 28, 2018, the Defendants stipulated to amend the answer and all other documents filed by the Law Office of Steven D. Levine to delete Opposing Defendant as a party represented by the Law Office of Steven D. Levine.

Trial is set for September 25, 2019.

PARTY’S REQUEST

Plaintiff requests this court to strike both Opposing Defendant’s answers.

Plaintiff also requests $9,960.00 in monetary sanctions against Opposing Defendant for the filing of this motion.

LEGAL STANDARD

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc. § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

DISCUSSION

Meet and Confer Requirement

The court finds that Moving Defendants’ declaration satisfies the meet and confer requirement under California Code of Civil Procedure section 435.5, subdivision (a)(3). (Holdsworth Decl., ¶ 7.)

Motion to Strike Complaints

The court finds it is improper to strike both answers in this action due to a clerical mistake. It is apparent through the notice of errata filed on March 21, 2018 and the stipulation to amend an answer filed on March 28, 2018 that Opposing Defendant was mistakenly named as an answering party in the answer filed on October 10, 2017.

Still, the court finds there to be irrelevant information contained in the answer filed on October 10, 2017 based on the notice of errata filed on March 21, 2018 and the stipulation to amend an answer filed on October 10, 2017. Namely, all references to Opposing Defendant as an answering defendant in the answer filed on October 10, 2017 is irrelevant as this has been stated to be an error by the counsel of record and stipulated to be omitted by Defendants.

Monetary Sanctions

On April 10, 2019, Plaintiff filed a notice withdrawing a request for monetary sanctions against the Law Offices of Bassett, Discoe, McMains & Kargozar as prayed for in Plaintiff’s motion to strike the Opposing Defendant’s answers. Plaintiff requested monetary sanctions against Opposing Defendant, not the Law Offices of Bassett, Discoe, McMains & Kargozar in Plaintiff’s motion to strike. Nevertheless, the court finds Plaintiff intended to withdraw monetary sanctions against Opposing Defendant because that is the only party Plaintiff sought monetary sanctions against in the motion to strike.

CONCLUSION

The motion to strike is therefore GRANTED IN PART and DENIED IN PART. Plaintiff’s request for monetary sanctions is DENIED as MOOT.

The court STRIKES “DR PEPPER SNAPPLE GROUP, INC.” from the following sections of the answer filed on October 10, 2017:

Page 1, line 6;

Page 1, lines 19-20;

Page 1, lines 21-22; and

Page 3, lines 20-21.

Plaintiff is ordered to give notice of this ruling.