Case Name: Andrea Avila v. Francisco Coronado
Case No.: 17CV313916

I. Background

Plaintiff Andrea Avila (“Avila”) alleges defendant Francisco Coronado (“Coronado”) drunkenly grabbed her by the neck and choked her for refusing his romantic and sexual advances. Avila alleges she suffered severe emotional distress as a result of this incident as well as the pattern of inappropriate behavior and verbal abuse leading up to it. In the first amended complaint (“FAC”), Avila asserts causes of action against Coronado for battery and intentional infliction of emotional distress.

Currently before the Court is Coronado’s motion to strike the suit or action, which is accompanied by a request for judicial notice. Avila opposes the motion and filed a request for judicial notice as well.

II. Requests for Judicial Notice

Coronado requests judicial notice of court records in support of his motion, but does not actually discuss any of them in presenting his arguments. A matter must be relevant to a material issue in order for a court to take judicial notice of it. (Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.) Because Coronado does not discuss or rely on any of these records, they are not relevant. Consequently, the court records are not proper subjects of judicial notice. Coronado’s request for judicial notice is therefore DENIED.

Avila requests judicial notice of a declaration she prepared that describes the circumstances of this lawsuit as well as articles of incorporation and statements of information prepared by her former employer. Avila does not identify any statutory basis for her request. (See, e.g., Evid. Code, §§ 451, 452.) Additionally, these matters are not relevant to a material issue before the Court. Although Avila does discuss the statements of information, she does not address her declaration or the articles of incorporation. And, more significantly, her discussion of the statements of information appears to be for the sole purpose of establishing the existence of a triable issue of material fact, which issue is beyond the scope of the present motion as explained in more detail below. For these reasons, Avila’s request for judicial notice is DENIED.

III. Motion to Strike

Coronado’s motion to strike suffers from several fundamental defects. For the reasons set forth below, the motion must be denied.

First, a notice of motion to strike a pleading or portion thereof must identify the matter sought to be stricken. (Cal. Rules of Court, rules 3.1112(d), 3.1322(a).) Coronado identifies his motion as a motion to strike and cites Code of Civil Procedure sections 435 and 436. But he does not actually state he is moving to strike the FAC or some portion thereof in his notice. In Coronado’s memorandum of points and authorities, he asks the Court to strike this “suit” or “action.” (Mem. of Pts. & Auth. at p. 5:1-14.) In actuality, Code of Civil Procedure sections 435 and 436 authorize a court to strike all or some portion of a pleading, not an action or suit. And so the Court presumes Coronado intended to move to strike the entire FAC despite the fact he filed a defective notice that fails to identify a proper subject of a motion to strike.

Second, a memorandum of points and authorities must contain “a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, rule 3.1113(b).) It is insufficient to merely assert a point without providing authority and analysis in support. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282; see also Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85.) Here, Coronado simply concludes this action is a sham and should be stricken on that basis without providing a clear explanation or legal analysis in support. This is wholly inadequate. Additionally, the two cases cited by Coronado do not independently reflect his motion is meritorious. It is not apparent how either Ricard v. Grobstein, Goldman, Stevenson, Siegel, LeVine & Mangel (1992) 6 Cal.App.4th 157 or Muller v. Tanner (1969) 2 Cal.App.3d 445 support Coronado’s motion as neither case addresses motions to strike or legal principles with any apparent applicability to the issues before the Court.

The Court also observes that while Coronado uses the term “sham,” the sham pleading doctrine does not actually appear to be implicated here. Ordinarily, courts rely on the sham pleading doctrine to determine which allegations to accept as true for the purpose of evaluating the sufficiency of the allegations in the pleading. (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383.) In general, the factual allegations in a complaint are accepted as true for the purpose of a demurrer. (Ibid.) “However, an exception exists where a party files an amended complaint and seeks to avoid the defects of a prior complaint either by omitting the facts that rendered the complaint defective or by pleading facts inconsistent with the allegations of prior pleadings.” (Id. at pp. 383-84.) Under those circumstances, “the policy against sham pleading permits the court to take judicial notice of the prior [complaint] and requires that the pleader explain the inconsistency.” (Id. at p. 384.) “If he [or she] fails to do so[,] the court may disregard the inconsistent allegations and read into the amended complaint the allegations of the superseded complaint.” (Ibid.) Coronado does not argue and it is not otherwise obvious there are inconsistent allegations in the pleading. And so Coronado apparently is not relying on the sham pleading doctrine.

Instead, it appears Coronado is simply using the term “sham” to generically characterize the lawsuit as lacking merit. Although not clearly articulated, it appears he believes this action lacks merit because Avila previously released the claims asserted against him when she settled a separate wage-and-hour lawsuit against his employer. Release, sometimes called compromise and release, is an affirmative defense. (Vahle v. Barwick (2001) 93 Cal.App.4th 1323, 1328.) A defendant may move for summary judgment on the ground an action lacks merit because there is a complete defense thereto, such as the defense of release. (Ibid.) But there is no authority for striking a matter on the ground it lacks merit due to the existence of an affirmative defense. (See Code Civ. Proc., § 436.) Consequently, Coronado cannot raise the defense of release in this manner.

To be sure, the defense of release is ordinarily raised at summary judgment because a court must consider evidence, such as the settlement or release agreement and the circumstances under which it was executed, to determine whether the release bars the action. (Vahle, supra, 93 Cal.App.4th at pp. 1328-29.) Although the grounds for a motion for summary judgment must be established by evidence (Code Civ. Proc., § 437c, subds. (b)(1), (o)(2), (p)(2)), the grounds for a motion to strike must be apparent from the face of the pleading or matters subject to judicial notice (Code Civ. Proc., § 437). As one court explained, “[w]here a party makes recourse to evidence. . . he [or she] must file a motion for summary judgment and not a motion to strike.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 779, fn. 2, original italics.)

Here, Coronado affirmatively states he is not raising a defect that is apparent from the face of the pleading. (Mem. of Pts. & Auth. at p. 4:27-28.) Instead, he relies on evidence purportedly showing Avila released her claims. As Avila aptly points out, the Court cannot consider this evidence for the purpose of a motion to strike. Consequently, Coronado’s affirmative defense based exclusively on evidence the Court cannot consider is not properly raised by motion to strike.

In conclusion, Coronado does not identify any proper subject, ground, or factual basis for his motion to strike. The motion to strike is therefore DENIED.