Professional Documents
Culture Documents
02/09
NOU-0B-2007 21 = 41
I. INTRODUCTION
This case arises from a church schism. On October 11, 2007,
plaintiffs, SOUTHERN CALIFORNIA DISTRICT COUNCIL OF THE ASSEMBLIES OF
GOD [SCDC] and NEW HOPE FAMILY WORSHIP CENTER, California non-profit
-K,
religious corporations [collectively SCDC], filed a verified
Complaint against defendants KENNETH M. PETERS, JR. [PETERS], NEW
HOPE'S former pastor, and ALAN R. SPITALNICK [SPITALNICK], a former
NEW HOPE board member, alleging causes of action for quiet title,
declaratory relief and an accounting. On November 6, 2007, PETERS and
SPITALNICK filed a joint answer to the Complaint in the form of a
general denial under Code of Civil Procedure § 431.30(d) and alleging
various affirmative defenses, which was not verified. Simultaneously,
PETERS and SPITALNICK filed a cross complaint against SCDC, alleging
causes of action for declaratory relief, to quiet title, trespass to
land, and conversion, which likewise was not verified.
CCP §§ 435 and 436 authorize a court to strike an entire
pleading, not filed in accordance with the law. Neither defendants'
answer or the cross-complaint was so filed. Because SCDC's complaint
was verified, the answer of PETERS and SPITALNICK thereto also must
be verified. Further, the answer cannot be in the form of a general
denial, but must address the complaint's specific allegations.
Defendants' answer satisfies neither requirement. Similarly, because
.PETERS' and SPITALNICK's cross-complaint alleges a cause of action to
quiet title, it must be verified. But it was not. As such, SCDC's
motion should be granted and the answer and cross-complaint of PETERS
and SPITALNICK stricken.
TI. ARGUMENT
A. THE ANSWER AND CROSS COMPLAINT OF PETERS AND SPITALNICK
SHOULD BE STRICKEN BECAUSE NEITHER WAS FILED IN CONFORMANCE
WITH THE LAW.
Under CCP §§ 435(a)(1) and (2) and 436(b), upon motion made, a
court may strike an answer or cross-complaint in their entirety, if
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not filed *in conformity with the law". As set forth below, neither
the answer or cross-complaint filed by PETERS and SPITALNICK was "in
conformity with the law," As such, this Court should order them
stricken.
1. The Answer Was Not Filed In Conf^^-"-t^y With The Law.
SCDC's complaint alleges a cause of action to quiet title, and
as such, was verified as required by CCP § 761.020. The answer filed
by PETERS and SPITALNICK is not in conformance with the law in two
respects and should be stricken.
First, under CCP § 446(a), "when the complaint is verified, the
.answer shall be verified". But the answer filed by PETERS and
SPITALNICK is not verified,
Second, the answer is in the form of a general denial, and
PETERS and SPITALNICK designate it as such, citing CCP § 431.30(d)
[Answer 1:23]. However, CCP § 431.30(d) does not permit a general
denial, where "the complaint is verified", except in limited civil
cases. Rather, "the denial of the allegations shall be made
positively or according to the information and belief of the
defendant" [Id.]. Therefore, the answer should be stricken.
2. The Cross-Complaint Was Not Filed In Conforf -f *y yf***
Thejjaw.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRTKK
ANSWER TO COMPLAINT AND CROSS COMPLAINT
P.05/09
NOU-08-2007 21:41
•:5.
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MICHAEL J. COLLINS, ESQ.
J • JULIAN B. BELLEN&HI, ESQ.
Attorneys for Plaintiffs
•:;e SOUTHERN CALIFORNIA DISTRICT
COUNCIL OF THE ASSEMBLIES OF
GOD, and NEW HO^E FAMILY
WORSHIP CENTER
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NOU-08-2007 21:41 •06/09
RE: SPIAO and NEW HOPE FAMILY WORSHIP CENTER v . PETERS. SPITALNICK. a t al
Case No. CASE NO. RIC 4 8 2 7 6 2
F i l e No. AOG-8
PROOF OF SERVICE
STATE OF CALIFORNIA
SS.
COUNTY OF LOS ANGELES
'ALAN R, SPITALNICK
17177 Deepwood Lane
Riverside, CA 92503
CHRISTOPHER M. CULLEN
LANAK & HANNA, P,C.
400 N. Tustin Ave, Suite 120
Santa Ana, CA 92705
26 By:
Edina'Bu
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