Case Name: Dheeraj S. Mohnia v. Surbhi Kaul
Case No.: 2015-1-CV-283283

Motion to Strike Affirmative Defenses in the First Amended Answer by Plaintiff Dheeraj S. Mohnia

Factual and Procedural Background

This is a breach of contract case. In September 2012, plaintiff Dheeraj S. Mohnia (“Mohnia”) and defendant Surbhi Kaul (“Kaul”) entered into an oral agreement whereby defendant Kaul agreed to repay plaintiff Mohnia monies that Mohnia loaned to her as soon as defendant Kaul relocated and purchased a home in a good school district. (See First Amended Complaint [“FAC”] at ¶¶ 9-10.) Between 2009 and 2012, plaintiff Mohnia loaned defendant Kaul $185,671 to pay attorney fees for her ongoing divorce and to purchase her residence from her soon-to-be ex-spouse. (Id. at ¶ 8.)

Defendant Kaul has stabilized from her divorce and purchased a home in a good school district in addition to several other properties. (FAC at ¶¶ 12-13.) Plaintiff Mohnia requested defendant Kaul repay the loan but defendant Kaul ceased all communication and, on May 2, 2014, defendant Kaul, through her attorneys, sent plaintiff Mohnia a cease and desist letter which constitutes a breach of contract. (Id. at ¶¶ 13-14.)

The operative FAC alleging causes of action for: (1) breach of contract; (2) common count – money paid; and (3) promissory fraud.

Defendant Kaul filed a first amended answer (“FAA”) setting forth eighteen affirmative defenses.

Motion to Strike Affirmative Defenses

Currently before the Court is plaintiff Mohnia’s motion to strike the first, third, fifth through fourteenth, and seventeenth affirmative defenses in the FAA. (Code Civ. Proc., §§ 435-436.) Both sides filed requests for judicial notice in conjunction with the motion. Defendant Kaul filed written opposition. Plaintiff Mohnia filed reply papers.

Mohnia’s Request for Judicial Notice

Plaintiff Mohnia requests judicial notice of the following: (1) Jury Verdicts –First and Second Causes of Action in this case filed on June 27, 2017 (Exhibits A-B); and (2) the trial court order granting the motion for partial new trial in this case filed on December 22, 2017 (Exhibit C). The Court may take judicial notice of Exhibits A, B, and C as records of the superior court under Evidence Code section 452, subdivision (d). (See Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145 [proper to take judicial notice of the existence of documents in a court file and the results reached].) The request also appears relevant to issues raised in the motion to strike. (See Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [judicial notice is confined to those matters which are relevant to the issue at hand].)

Accordingly, Mohnia’s request for judicial notice is GRANTED.

Kaul’s Request for Judicial Notice

Defendant Kaul requests judicial notice of the following: (1) trial court order granting leave to amend answer, re-opening discovery, and vacating MSC date and trial date and setting new trial setting conference (Exhibit A); (2) copy of the FAA (Exhibit B); (3) Mohnia’s Complaint filed on July 20, 2015 (Exhibit C); and (4) the operative FAC filed on June 2, 2017 (Exhibit D). The Court may take judicial notice of Exhibits A, B, C, and D as records of the superior court under Evidence Code section 452, subdivision (d).

Consequently, Kaul’s request for judicial notice is GRANTED.

Timeliness of the Motion

In opposition, defendant Kaul argues the motion to strike should be denied as it was untimely filed.

“A plaintiff has only 10 days after service of an answer to file a demurrer to the answer. A motion to strike an answer may be brought ‘within the time allowed to respond to a pleading’ [Citation]. Presumably, because a motion to strike and a demurrer must be brought at the same time, a motion to strike must be filed within 10 days after service of the answer.” (Weil & Brown, CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2018) ¶ 7:166.1, p. 7(l)-74; Code Civ. Proc., § 435, subd. (b); Cal. Rules of Court, rule 3.1322(b).)

Here, defendant Kaul served plaintiff Mohnia with the FAA on September 4, 2018. (See Kaul’s Request for Judicial Notice [“RJN”] at Exhibit B.) Thus, Mohnia had 10 days after this date to file any motion to strike. Plaintiff Mohnia did not file the request until September 18, 2018, 14 days after service of the FAA. Defendant Kaul however does not cite any legal authority which allows a court to deny a motion to strike that is untimely filed. In fact, the Code specifically allows the Court to strike a pleading or any portion thereof “at any time in its discretion.” (Code Civ. Proc., § 436.) The Court therefore will consider the merits of the motion.

Legal Standard

A court may strike out any irrelevant, false, or improper matter asserted in a pleading. (Code Civ. Proc., § 436, subd. (a).) A court may also strike out all or any part of a pleading not filed in conformity with the laws of the State of California. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

Analysis

Plaintiff Mohnia makes the following arguments in support of the motion to strike: (1) the affirmative defenses are barred by the doctrine of collateral estoppel; and (2) the affirmative defenses should be stricken to avoid gamesmanship by defendant Kaul during the second trial.

Collateral Estoppel

Plaintiff first argues the first, third, and fifth through fourteenth, and seventeenth affirmative defenses are barred under the doctrine of collateral estoppel.

“Collateral estoppel precludes the relitigation of an issue only if (1) the issue is identical to an issue decided in a prior proceeding; (2) the issue was actually litigated; (3) the issue was necessarily decided; (4) the decision in the prior proceeding is final and on the merits; and (5) the party against whom collateral estoppel is asserted was a party to the prior proceeding or in privity with a party to the prior proceeding. [Citation.]” (Zevnik v. Super. Ct. (2008) 159 Cal.App.4th 76, 82.) “The party asserting collateral estoppel bears the burden of establishing these requirements.” (Lucido v. Super. Ct. (1990) 51 Cal.3d 335, 341 (Lucido).)

Even if all the traditional elements of collateral estoppel were met, courts still look “to the public policies underlying the doctrine before concluding that collateral estoppel should be applied in a particular setting.” (Lucido, supra, 51 Cal.3d at pp. 342-343.) “[T]he public policies underlying collateral estoppel—preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation—strongly influence whether its application in a particular circumstance would be fair to the parties and constitutes sound judicial policy.” (Id. at p. 343.)

Here, plaintiff Mohnia argues the case first went to trial on June 19, 2017. Following the presentation of testimony and evidence, the jury determined that defendant Kaul was liable for breach of contract and money paid to plaintiff Mohnia. (See Mohnia’s RJN at Exhibits A, B.) Defendant Kaul thereafter filed a motion for new trial which was granted in part for the purpose of determining plaintiff Mohnia’s damages. (Id. at Exhibit C.) Based on the foregoing, plaintiff Mohnia asserts the requirements for collateral estoppel have been established and thus the affirmative defenses should be stricken.

As stated above, one of the threshold requirements for application of collateral estoppel is the existence of a final judgment on the merits. As a preliminary matter, the moving papers do not specifically address whether there is a final judgment on the merits arising from the first trial. Furthermore, any such judgment would now cease to exist as the court granted in part the motion for new trial. (See Mohnia’s RJN at Exhibit 3; see also Marshall v. Brown (1983) 141 Cal.App.3d 408, 414 [“when a motion for new trial is granted the judgment is vacated”]; Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 329 [in the context of a new trial on the single issue of damages, the judgment was set aside in its entirety when the court granted a new trial as to damages].) Without a final judgment merits, the doctrine of collateral estoppel is not applicable as a matter of law.

Potential Gamesmanship in the Second Trial

In the alternative, plaintiff Mohnia argues the affirmative defenses should be stricken to avoid any potential gamesmanship by defendant Kaul during the second trial. Plaintiff Mohnia is apparently concerned that Kaul will attempt to retry issues of liability that were determined in the first trial as opposed to focusing on the issue of damages which is the subject of the second trial. The moving papers however do not support this contention with any authority nor does it appear to provide a legal basis for striking affirmative defenses. (See Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934 [trial court not required to “comb the record and the law for factual and legal support that a party has failed to identify or provide”]; see also Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 52 [where appellant’s motion was supported by deficient memorandum, trial court was justified in denying the motion on procedural grounds].) Moreover, this Court cannot speculate as to what arguments and evidence will be presented by defendant Kaul during the second trial for damages.

In addition, any such concerns regarding the presentation of relevant evidence with respect to affirmative defenses, can be adequately addressed by the trial judge at the time of trial. (See Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 1006 [“it is the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument to counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved”]; People v. Sturm (2006) 37 Cal.4th 1218, 1237 [same].) Finally, Plaintiff Mohnia may file any motions in limine to further regulate the introduction of relevant evidence during the second trial for damages. (See Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1282 [“Motions in limine are designed to facilitate the management of a case, generally by deciding difficult evidentiary issues in advance of trial”.]; see also Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1593 [the usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party].) The trial judge may then determine whether any of defendant Kaul’s affirmative defenses are sufficiently relevant to issues raised in the second trial for damages. Accordingly, this argument does not provide a legal basis for striking the affirmative defenses.

Disposition

The motion to strike the first, third, fifth through fourteenth, and seventeenth affirmative defenses in the FAA is DENIED.