EUN JUNG LIM
[ENTER ADDRESS]
Plaintiff in Pro Per
| SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE |
|
| EUN JUNG LIM,
Plaintiff v. HOAG MEMORIAL HOSPITAL PRESBYTERIAN; and HERBERT CONRAD, Defendants |
Case No.: 30-2022-01242187
NOTICE OF MOTION; MOTION TO STRIKE ANSWER AND AFFIRMATIVE DEFENSES; & MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT. |
NOTICE OF MOTION
To ALL Defendants and to their Attorneys of Record:
Please TAKE NOTICE that on [ENTER DATE], at [ENTER TIME] or soon thereafter, the Plaintiff herein will move this Court, in Department C25 for an order granting Plaintiff’s Motion to Strike Defendant’s Answer and Affirmative Defenses.
This motion will be based on the grounds that the Answer contains irrelevant matter.
Further, the motion will be based on this Notice of Motion, the Memorandum set forth below, on the records and file herein, and on such evidence as may be presented at the hearing of the motion.
Dated: [ENTER DATE]
EUN JUNG LIM
[ENTER ADDRESS]
Plaintiff in Pro Per
| SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE |
|
| EUN JUNG LIM,
Plaintiff v. HOAG MEMORIAL HOSPITAL PRESBYTERIAN; and HERBERT CONRAD, Defendants |
Case No.: 30-2022-01242187
|
COMES NOW, Plaintiff, EUN JUNG LIM, pro se, files this Motion to Strike Defendant’s Answer and Affirmative Defenses pursuant to Code of Civil Procedure (hereinafter “CCP”) § 435 and 436. In support of this Motion, Plaintiff states as follows:
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES
FACTUAL BACKGROUND
The incidence giving rise to this action began when Plaintiff’s mother had been admitted at the First Defendant’s facility. On January 25, 2020, Plaintiff went to visit her mother. As Plaintiff was checking in at the ER at the First Defendant’s facility, the Second Defendant stole Plaintiff’s phone from the ER lobby and pushed the Plaintiff until Plaintiff fell.
Consequently, the police officers arrived and took a police report of the incidence. Interestingly, the Second Defendant gave false information that Plaintiff was the one who punched his face. Accordingly, Plaintiff was charged and a case was filed against her. During the pendency of the said case, the Irvine Police Department refused to give Plaintiff a copy of the Police Report. It was only when the case was dismissed when the Irvine Police Department gave the Plaintiff the Report.
The said case was dismissed on June 2020. After the dismissal of the case, the Plaintiff got the Report. It is also worth noting that during the trial of the said case, no one apart from the detective looked at the hospital camera footage that recorded the events of January 25, 2020.
Unfortunately, Plaintiff’s mother died during the pendency of the case against Plaintiff. Further, Plaintiff has been subjected to emotional harm and distress pursuant to the malicious prosecution and the acts and/or inactions of the Defendants.
Plaintiff filed an action against the Defendants on or about January 25, 2022. In the Complaint, Plaintiff alleged that Defendants were blameworthy for negligence, malicious prosecution, and intentional infliction of emotional distress.
On or about March 8, 2022, Defendant Hoag Memorial Hospital Presbyterian filed an Answer to Plaintiff’s Complaint. In the Answer, Defendant denied the allegations in Plaintiff’s Complaint. The Defendant also raised Affirmative Defenses to each of Plaintiff’s cause of action. Plaintiff therefore files this Motion for Summary Judgment.
ARGUMENTS
A Motion to Strike is appropriate where the Answer contains irrelevant matter
Code of Civil Procedure § 436 states in pertinent part that a Motion to Strike may be filed to strike any false, irrelevant or improper matter inserted in any pleading, and to strike any pleading or part thereof not drawn in conformity with the laws of this state. A motion to Strike may also be granted if the Answer consists of immaterial allegations.
An immaterial allegation is defined in Code of Civil Procedure § 431.10 which states in pertinent part that
“b) An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense. (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense. (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint. (c) An “immaterial allegation” means “irrelevant matter” as that term is used in Section 436.”
Traditionally, a motion to strike is used to reach defects in a pleading that are not subject to a demurrer. 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1008, p. 420; see, e.g., Hale v. Laden (1986) 178 Cal.App.3d 668, 673 (trial court, as a “ministerial act,” could strike cross-complaint which became irrelevant.
Plaintiff contends that the entire answer should be stricken on the grounds that the answer is not verified as required by Code of Civil Procedure § 446 which states in pertinent part that, “When the complaint is verified, the answer shall be verified.” Thus the answer is not drawn in conformity with the laws of this state. The proper objection where a party fails to verify a pleading is a motion to strike. Zavala v. Board of Trustees of Leland Stanford, (1993) 16 Cal. App. 4th 1755, 1761. In the instant action, Plaintiff’s Complaint was verified by a Declaration by the Plaintiff under oath that all the averments in the Complaint were true.
The pleadings at which a motion to strike may be directed include demurrers, answers, complaints, and cross complaints. See Code of Civil Procedure § 435(a). In the alternative, plaintiff contends that ALL of the affirmative defenses contained in the answer should be stricken as the affirmative defenses consist entirely of allegations that are wholly irrelevant to the causes of action alleged in the complaint, and thus constitute immaterial allegations.
An immaterial allegation is defined in Code of Civil Procedure § 431.10 which states in pertinent part that an immaterial allegation in a pleading is any of the following:
- An allegation that is not essential to the statement of a claim or defense.
- An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.
- A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.
An “immaterial allegation” on the other hand means “irrelevant matter” as that term is used in Section 436 the California Code of Civil Procedure.
The first affirmative defense alleges that there are other Defendants that should be added to the suit, and that Plaintiff contributed to the injuries. Yet this defense is not even remotely relevant to any of the causes of action contained in the complaint. The other affirmative defenses like the first, consist entirely of allegations that are wholly irrelevant to the causes of action alleged in the complaint, and thus constitute immaterial allegations which should be considered irrelevant matter and stricken.
CONCLUSION
Based on the foregoing, Plaintiff requests that this Court grant the Motion to Strike the entire answer filed by Defendant, or in the alternative that the Court order that ALL of the affirmative defenses contained in the answer filed by Defendant should be stricken. Plaintiff also prays for any further Order this Court deems just.
CERTIFICATE OF SERVICE
I hereby certify that on [ENTER DATE], copies of the foregoing document have been sent to the Defendant in the following address:
CARROLL, KELLY, TROTTER & FRANZEN
MICHAEL J. TROTTER (SBN 139034)
JO LYNN VALOFF (SBN 177081)
111 West Ocean Boulevard, 14th Floor
Post Office Box 22636
Long Beach, California 90801-5636
Telephone No. (562) 432-5855 / Facsimile No. (562) 432-8785
mjtrotter@cktflaw.com / jlvaloff@cktflaw.com
Attorneys for Defendant, Hoag Memorial Hospital Presbyterian
DATED: ______________
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