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Michael J. Collins, Bar No. 65506

AL FD L E ©
SUPERIOR COURT OF CALIFORNIA
COUNTY OF RIVERSIDE
Julian B. Bellenghi, Bar No 129942
.COLLINS & BELLENGHI, LLP
1201 Dove Street, Suite 570 ftuV 0 9 2007
Newport Beach, CA 92660
Telephone: (949) 851-9311 &
Facsimile: (949) 851-9333
Attorneys for Plaintiffs
SOUTHERN CALIFORNIA DISTRICT COUNCIL OF THE ASSEMBLIES OF GOD, a
California Non-Profit Religious Corporation; and NEW HOPE FAMILY
WORSHIP CENTER, a California Non-profit Religious Corporation
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF RIVERSIDE - WESTERN DIVISION
RIVERSIDE BRANCH

'SOUTHERN CALIFORNIA DISTRICT CASE NO. RIC 482762

COUNCIL OF THE ASSEMBLIES OF
GOD, a California Non-Profit Assigned for All Purposes To:
Religious Corporation; and NEW Honorable Edward Webster
HOPE FAMILY WORSHIP CENTER, a Department 05
California Non-Profit Religious
Corporation Complaint Filed: October 11, 2007
Plaintiffs,
MEMORANDUM OF POINTS AND
v. AUTHORITIES IN SUPPORT OF MOTION
TO STRIKE ANSWER TO COMPLAINT AND
KENNETH M. PETERS, JR.; ALAN R. CROSS COMPLAINT
SPITALNICK; ALL PERSONS Date
UNKNOWN, CLAIMING ANY LEGAL OR
EQUITABLE RIGHT, TITLE, ESTATE, Time:
- p^l?slet
LIEN, OR INTEREST IN THE Dept:
PROPERTY DESCRIBED IN THE 4
COMPLAINT ADVERSE TO
PLAINTIFFS' TITLE, OR ANY CLOUD
ON PLAINTIFFS' TITLE THERETO;
and DOES 1 to 500, inclusive,
Defendants.

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

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE

ANSWER TO COMPLAINT AND CROSS COMPLAINT
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-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
2

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE

ANSWER TO COMPLAINT AND CROSS COMPLAINT
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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.

PETERS' and SPITALNICK's cross complaint alleges a cause of

action to quiet title [Cross-complaint 4:22-5:12], CCP § 761.020
requires that complaints alleging quiet title actions be verified.
The cross-complaint is not verified and therefore should be stricken.
III. CONCLUSION

Based on the foregoing, SCDC respectfully requests that the

3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRTKK
ANSWER TO COMPLAINT AND CROSS COMPLAINT
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NOU-08-2007 21:41

I answer and c r o s s - c o m p l a i n t f i l e d by PETERS and SPITALNICK be

: stricken.
2
'r' 3 ''
:4 Dated: November 8, 2007 HI, L

•:5.

;6
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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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE

ANSWER TO COMPLAINT AND CROSS COMPLAINT
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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

I am employed in the County of Orange, State of California. I

am over the age of 18 and not a party to the within action; my
business address is 1201 Dove Street, Suite 570, Newport Beach, CA
92660.

On November 6, 2007 i served the document(s) described as:

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE
ANSWER TO COMPLAINT AND CROSS COMPLAINT by placing a copy thereof
enclosed in a sealed envelope and addressing it as follows:

KENNETH M. PETERS, JR.

10814 Rosemary Way
Corona, CA 92883

'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

I am "readily familiar" with the firm's practice of collection

and processing correspondence for mailing. Under that practice it
would be deposited with the U.S. postal service on that same day
with postage thereon fully prepaid at Newport Beach, California in
the ordinary course of business. I am aware that on motion of the
party served, service is presumed invalid if postal cancellation
date or postage meter date is more than one day after date of
deposit for mailing in affidavit.

X (By U.S. Mail) I deposited such envelope to be delivered

to Manual Duran in the U.S. mail box at Newport Beach,
California, Executed on November 8, 2007,
X (State) I declare that I ajrf employed in the office of a
member of the bar of this £ourq /f£ who^e direction the
service was made.

26 By:
Edina'Bu
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