PLAINTIFFS MOTION TO STRIKEDEFENDANTS ANSWER

David A. Green

8533 Glendora Ave.

Hesperia, CA 92344

(760) 713-1867

Email

Plaintiff in pro per

IN THE SUPERIOR COURT OF CALIFORNIA

FOR THE COUNTY OF SAN BERNARDINO

NOTICE OF PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S ANSWER

You are notified that on [DATE] at [TIME], or as soon thereafter as the Plaintiff can be heard, in Courtroom ___ of the Superior Court of California for the County of San Bernardino, the Plaintiff will bring on for hearing his Motion to Strike Defendant’s Answer for the reasons stated in the attached Motion.

Dated this ____ day of May, 2022.

Respectfully Submitted,

___________________________________

David A. Green

Plaintiff in pro per

David A. Green

8533 Glendora Ave.

Hesperia, CA 92344

(760) 713-1867

Email

Plaintiff in pro per

IN THE SUPERIOR COURT OF CALIFORNIA

FOR THE COUNTY OF SAN BERNARDINO

NOW COMES David A. Green, Plaintiff, and brings this Motion to Strike Defendant’s Answer against Westrux International, Inc., Defendant, and hereby avers as follows:

1. This Motion to Strike is made pursuant to Code of Civil Procedure §§ 435 on the grounds that the Answer has been filed past the time period stipulated by statute; and all of the affirmative defenses listed in the answer filed by Defendant assert only affirmative defenses that are wholly irrelevant to the causes of action alleged in the Complaint, and thus constitute immaterial allegations.
2. Cal. Code Civ. Proc. § 430.40 provides as follows: “A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” Defendant was served with Plaintiff’s Complaint and Summons on [DATE]. Defendant filed its Answer on May 11^th 2022. Clearly, Defendant’s Answer has been filed way past the timeframe required by statute.
3. Defendant’s Answer is made in bad faith. In the Answer, Defendant summarily denies all the contents of Plaintiff, including legal conclusions that require no Answer of Defendant.
4. The Answer filed by Defendant contains falsities. Defendant denies all the causes of action in the Complaint and states that Plaintiff did not sustain any injury by reason of its acts and/or omissions, while Plaintiff has overwhelming evidence against it.
5. All the affirmative defenses pled by Defendant are moot.
6. The first affirmative defense is that the complaint and each and every purported cause of action fails to state facts sufficient to constitute a cause of action against Defendant. Plaintiff incorporates the Statement of Facts and Cause of Action in his Complaint. Plaintiff has described in detail Defendant’s poor workmanship and repairs on Plaintiff’s truck. Subsequently, Plaintiff has successfully brought cause of action of negligence and breach of implied warranty of merchantability.
7. The second affirmative defense is that Plaintiff’s conduct was so reckless, unlawful and negligent as to totally cause and/or contribute in some degree to the alleged incident and the damages and injuries, if any, alleged to have been sustained. Defendant has not availed any facts to show that Plaintiff’s conduct was reckless, unlawful and negligent. Defendant’s second affirmative defense consists of mere speculation rather than facts.
8. The third affirmative defense is that Plaintiff has failed to mitigate damages. Plaintiff has chronologically outlined the events that happened and organized his causes of action properly. They all point to the fact that Defendant caused further damage to Plaintiff’s vehicle instead of repairing it properly as agreed.
9. The fourth affirmative defense is that Defendant acted within the bounds of the law, in good faith, with due care and without malice. If Defendant had acted with due care, it would have repaired Plaintiff’s vehicle to full proper working condition. Defendant did not act in good faith as it did not wish to settle with Plaintiff in good faith prior to the filing of this lawsuit.
10. The fifth affirmative defense is that the damage incurred by Plaintiff was as a result of actions of third persons or parties. Defendant has failed to name a single third person or party and how their actions contributed to damage on Plaintiff’s vehicle.
11. The damage suffered by Plaintiff was a direct result of Defendant’s negligence and failure to properly repair Plaintiff’s vehicle.
12. Plaintiff’s claims are not barred by any statute of limitations, statute of repose or doctrine of laches.
13. Plaintiff has not engaged in any conduct of fraud, deceit, unconscionability or bad faith during the course of this matter to constitute bad faith.

REASONS WHEREFORE, Plaintiff respectfully requests this Honorable Court to grant this Motion to Strike Defendant’s Answer, and subsequently sign the attached proposed Order to that effect.

Dated this ____ day of May, 2022.

Respectfully Submitted,

___________________________________

David A. Green,

Plaintiff in pro per

VERIFICATION

I, David A. Green, being duly sworn depose and say that I am the Plaintiff in the above entitled action, that I have read the foregoing Motion to Strike Defendant’s Answer and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.

_________________________________

(Sign in the presence of a Notary Public)

Sworn to and subscribed before me this _____ day of May, 2022.

______________________________

Notary Public

________________________________________

(Printed name of Notary Public)

My Commission Expires: ____________________

David A. Green

8533 Glendora Ave.

Hesperia, CA 92344

(760) 713-1867

Email

Plaintiff in pro per

IN THE SUPERIOR COURT OF CALIFORNIA

FOR THE COUNTY OF SAN BERNARDINO

[PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES

This Matter, having come before the Court on Plaintiff’s Motion to Strike Defendant’s Answer and Affirmative Defenses, and it appearing, upon Plaintiff’s argument and good cause shown, that the Motion should be granted, IT IS HEREBY ORDERED that Plaintiff’s Motion is granted and Defendant’s Answer and Affirmative Defenses are stricken.

Dated this ____ day of May, 2022.

___________________________________

Name of Judge

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