Haley Christina Thomas et al vs Jill Dore-Kent

Case Number

23CV02736

Case Type

Hearing Date / Time

Fri, 07/18/2025 - 10:00

Nature of Proceedings

CMC; OSC Sanctions; Motion to Strike

Tentative Ruling

1. The motion to strike cross-defendants’ answer to the cross-complaint, or portions thereof, is denied.
2. Counsel for plaintiffs and counsel for defendants are ordered to appear at the hearing, either personally or virtually, and be prepared to explain to the court whether fees were paid as ordered on March 7, 2025.

Background: 

This action commenced on June 27, 2023, by the filing of the complaint by plaintiffs Haley Christina Thomas and Alexandre Hort (collectively “plaintiffs” or “cross-defendants”) against defendants Jill Dore Kent and Martin Mielko (collectively “defendants” or “cross-complainants”) setting forth 10 causes of action.

On August 8, 2023, plaintiffs filed their first amended complaint. On October 23, 2023, plaintiffs filed their second amended complaint (“SAC”) setting forth causes of action for: (1) Breach of contract; (2) Violation of State statutes; (3) Violation of municipal ordinances; (4) Constructive eviction; (5) Negligence; (6) Private nuisance; (7) Unfair business practices; and (8) Breach of the covenant of quiet enjoyment.

Defendants filed a demurrer and motion to strike the SAC, and on March 8, 2024, the court partially sustained the demurrer and partially overruled the demurrer. The motion to strike was denied in its entirety. The demurrer to the first cause of action for breach of contract was sustained with leave to amend and otherwise overruled. Plaintiffs were ordered to file and serve their third amended complaint (“TAC”). Plaintiffs filed their TAC on Tuesday, April 2, 2024, setting forth causes of action for: (1) Breach of contract; (2) Violation of State statutes; (3) Constructive Eviction; (4) Negligence; (5) Unfair business practices; and (6) Breach of the covenant of quiet enjoyment.

As alleged in the operative TAC:

Plaintiffs were residential tenants of defendants at property located at 312 E. Sola Street in Santa Barbara. (TAC, ¶ 1.) Defendant Dore-Kent was the sole owner of the property. (TAC, ¶ 5.) Defendant Mielko was the agent, property manager, and employee of Kent. (TAC, ¶ 6.)

Plaintiffs and defendants entered into a residential lease for the property on August 16, 2021. (TAC, ¶ 12 & Exh. A.) Under the lease, defendants were required to provide a dwelling fit for plaintiffs’ residential use. (TAC, ¶ 13 & Exh. A.)

“Throughout the course of Plaintiffs’ tenancies, Defendants, and each of them, allowed the Premises, and Plaintiffs’ Unit, to deteriorate to the extent that living at the Premises was not only untenable practically, but presented, for example, enormous health risks, such as with sewage cascading down the interior of the Premises’ walls, severe water intrusion in multiple rooms of the Unit, and including a visually and trepidatiously sagging ceiling.” (TAC, ¶ 14.) Defendants failed to remediate the deteriorations or other habitability issues. (TAC, ¶¶ 15-24.)

In May 2022, plaintiffs informed defendants of a water intrusion, possible mold, and sewage in the kitchen of the property. (TAC, ¶ 25.) Plaintiffs received no response from defendants during ten days of attempting to report the issues. (Ibid.) On July 2, 2022, defendants responded to plaintiffs by serving a 3-Day Notice to Quit. (TAC, ¶ 27.)

Defendants filed and served an unlawful detainer action against plaintiffs which was later dismissed by way of demurrer. (TAC, ¶ 29.)

“Defendants, and each of them, had a design not only to actually evict Plaintiffs for their habitability complaints, but performed a constructive eviction of Plaintiffs in order to avoid remediation costs, to avoid tenant buyouts, to avoid move out costs, to avoid statutory or local ordinance entitlements, and so on, and chose instead to reap the profit, benefits and rewards of forcing tenants to move rather than engage in legally required rehabilitative efforts.” (TAC, ¶ 38.)

On September 25, 2024, defendants and cross-complainants filed a cross-complaint (“CC”) for: (1) Breach of Contract, (2) Indemnification, and (3) Waste.

On March 17, 2025, plaintiffs and cross-defendants filed their answer to the CC, asserting a general denial and 19 affirmative defenses.

Defendants and cross-complainants now move to strike the entire CC on the grounds that plaintiffs and cross-defendants failed to pay fees pursuant to a March 7, 2025 order that set aside their default and ordered them to pay attorneys’ fees of $950.00, no later than March 21, 2025. Defendants and cross complainants additionally seek to strike portions of the CC. Other than stating that “certain affirmative defenses are irrelevant, improper, or not pled with sufficient facts,” the notice of motion fails to identify the specific portions, or affirmative defenses, sought to be stricken.

Plaintiffs and cross-defendants oppose the motion.

Analysis:

As an initial matter, defendants and cross-complainants urge the court to disregard the opposition to the motion, arguing that they were not served. Plaintiffs and cross-defendants did provide a proof of service indicating that the opposition was served via email on June 23, 2025. While the court would be inclined to continue the hearing out of an abundance of caution, the court need not do so given the circumstances. Defendants and cross-complainants have failed to meet their burden, making the opposition unnecessary in denying the motion.

As a second matter, plaintiffs and cross-defendants provide proof that they have at least attempted to pay the fees ordered on March 7, 2025. By way of his supplemental reply declaration, counsel for defendants and cross-complainants does not appear to dispute this representation. Although, by way of the reply brief itself, counsel still makes the claim that the fees were not paid. Counsel should have either affirmatively declared that the payment was made, or that it was not, and provided the court with enough detail for the court to understand the sequence of events. “A lawyer shall not: knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” (Cal. Rules Prof. Conduct, rule 3.3, subd. (a)(1); see also Bus. & Prof. Code, § 6068, subd. (d).) Because it appears to the court that plaintiffs and cross-defendants have most likely paid the fees, the motion to strike the entirety of the answer will be denied. Because it seems as though an attorney is being less than forthright regarding the ordered payment, counsel will be ordered to appear at the hearing and explain.

Defendants and cross-complainants bring their motion to strike pursuant to Code of Civil Procedure section 436, which provides:

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

“(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

“(b) 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.” (Italics added.)

“Under general rules of civil procedure, an answer must contain ‘[t]he general or specific denial of the material allegations of the complaint controverted by the defendant’ and ‘[a] statement of any new matter constituting a defense.’ (Code Civ. Proc., § 431.30, subd. (b)(1) & (2).) ‘The phrase “new matter” refers to something relied on by a defendant which is not put in issue by the plaintiff. [Citation.] Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as “new matter.”’ [Citation.]” (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812.)

“Unlike the usual general demurrer to a complaint the inquiry is not into the statement of a cause of action. Instead it is whether the answer raises a defense to the plaintiff’s stated cause of action.” (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879-880.) “The allegations of the pleading demurred to must be regarded as true [citations]; a demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading [citations], or the construction placed on an instrument pleaded therein [citation], or facts impossible in law [citation], or allegations contrary to facts of which a court may take judicial knowledge.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)

“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (Cal. Rules of Court, rule 3.1322(a).)

Defendants and cross-complainants’ notice of motion is deficient. It does not identify which portions of the answer to the CC that that they seek to have stricken. Stating “certain affirmative defenses are irrelevant, improper, or not pled with sufficient facts,” is insufficient. The specific affirmative defenses are not identified in the notice as required.

Further, in the body of the motion itself, it appears that defendants and cross-complainants seek to strike affirmative defenses Nos. 1, 2, 3, 5, 6, 7, 8, 9, 10, 12, 16, and 17. However, the motion to strike is devoid of any legal authority.

“A party filing a motion . . . must serve and file a supporting memorandum. The court may construe the absence of a memorandum as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported.” (Cal. Rules of Court, rule 3.1113(a).)

“The memorandum 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).)

Defendants and cross-complainants’ memorandum of points and authorities contains none of the required information. There is no “concise statement of the law,” no “evidence and arguments relied on,” “no discussion (or even mention) of the statutes, cases, and textbooks cited in support.” The motion simply lists affirmative defenses and then makes unsupported conclusory remarks regarding why the defense should be stricken. That is not enough, and the motion will be denied in its entirety..