Jill Dore Kent vs Thomas S Schrock et al

Case Number

23CV05486

Case Type

Hearing Date / Time

Fri, 11/15/2024 - 10:00

Nature of Proceedings

CMC; Motion to Strike

Tentative Ruling

For the reasons set forth herein, plaintiff’s motion to strike portions of defendants’ answer is denied in its entirety.

Background:

On December 12, 2023, plaintiff Jill Dore Kent, individually and as Trustee of the Jill Dore Kent Living Trust, UTD 2/28/06 (“Kent”), filed a verified complaint against defendants Jean Schrock and Thomas Schrock, individually and as Trustees of the Schrock Living Trust dated 3/29/96 (collectively “defendants”), alleging two causes of action: (1) violation of city ordinance; and (2) nuisance.

Defendants demurred to the complaint and on June 6, 2024, the demurrer was sustained in part and overruled in part.

On June 26, 2024, Kent filed her operative verified first amended complaint (‘FAC”), setting forth the same two causes of action as contained in the original complaint.

As alleged in the FAC:

Kent owns real property commonly known as 1406 Grand Avenue in Santa Barbara, California (the Kent Property). (FAC, ¶ 1.) Defendants own real property commonly known as 1409 Grand Avenue in Santa Barbara, California (“defendants’ property”). (Id. at ¶ 2.) The Kent Property and defendants’ property  are situated across from each other at Kent’s southerly and defendants’ northerly boundaries. (Id. at ¶ 3.) “Plaintiff’s property sits slightly uphill and elevated from the Defendant’s Property.” (Ibid.)

Kent previously had unobstructed views of the Pacific Ocean along with a view of the Channel Islands and the bluff on which City College is located. (FAC, ¶ 6.) Defendants have allowed a tree and shrubs to grow which obstruct Kent’s views. (Id. at ¶ 8.)

On April 24, 2023, Kent notified defendants of her complaints regarding the obstruction of her view by the tree and shrubbery. (FAC, ¶ 13 & Exh. 4.) On August 1, 2023, Kent gave a second notice to defendants offering to mediate the dispute. (Id. at ¶ 14 & Exh. 5.) On October 31, 2023, Kent gave a final notice to defendants requesting mediation. (Id. at 15 & Exh. 6.)

Defendants continue to plant and cultivate the tree and Spite Fence so as to continue the obstruction of Kent’s views. (FAC. at ¶ 36.)

Defendants filed their verified answer to the FAC on July 17, 2024, admitting some allegations and denying others. Additionally, defendants assert nine affirmative defenses.

Kent now moves to strike paragraphs 3, 6, 7, and the first and third affirmative defenses.

Defendants oppose the motion to strike.

Analysis:

“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.” (Code Civ. Proc., § 436.)

“In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.)

“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

The portions of the answer that plaintiff moves to strike are:

“3. In response to Paragraph 3 of the First Amended Complaint, Defendants admit that Grand Avenue is located between Defendants’ property and Plaintiffs property and further admit that the two properties are generally situated across from each other on Grand Avenue. Defendants also admit that Plaintiffs property is located to the north of Grand Avenue, while Defendants’ property is located to the south of Grand Avenue, and that Plaintiff’s property is elevated above the street that separates Plaintiff’s property from Defendants’ property. Defendants deny that Plaintiff’s property and Defendants’ property share a boundary, and deny Plaintiffs home is ‘slightly uphill’ from Defendants’ property because the first-floor windows of Plaintiff’s property appear to be higher than Defendants’ roofline. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the remaining allegations stated in Paragraph 3, and on that basis deny each of those allegations.”

“6. In response to Paragraph 6 of the First Amended Complaint, Defendants deny that Plaintiff previously had ‘unobstructed views’ across Defendants’ property. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the remaining allegations stated in Paragraph 6, including any alleged view Plaintiff may or may not have had across properties other than Defendants’ property, and on that basis deny each of those allegations.”

“7. In response to Paragraph 7 of the First Amended Complaint, Defendants deny that Plaintiff previously had unobstructed views across Defendants’ property and therefore deny the allegations stated in Paragraph 7 on that basis. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegation that Plaintiff ‘spends days looking at the ocean’ stated in Paragraph 7, and on that basis denies the allegation.”

Affirmative Defense No. 1: “The First Amended Complaint and each cause of action therein asserted against Defendants fails to state facts sufficient to constitute a cause of action.”

Affirmative Defense No. 3: “Plaintiff is barred from any judgment against Defendants under her First Cause of Action for Violation of City Ordinance due to her failure to comply with the prerequisites to filing a private cause of action alleging violation of Chapter 22.76 of the Santa Barbara Municipal Code (‘Code’). Plaintiff’s failures to comply with the filing prerequisites of the Code included without limitation the violations set forth in the following Paragraphs 4-6.”

“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.” (Code Civ. Proc., § 430.40, subd. (b).)

Defendants filed and served their answer to the FAC on July 17, 2024. Ten days later lands on Saturday, July 27, 2024. Because the date landed on a weekend, the following court day would be the deadline to file. That date was July 29, 2024. The present motion was not filed until August 9, 2024, and is untimely.

As plaintiff argues, and defendants acknowledge, the denying of a motion to strike on the grounds that it is late filed is discretionary rather than mandatory. The court will exercise its discretion and deny the motion to strike as untimely.

The court notes that, had it been timely, the motion to strike would have failed on substantive grounds.