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E-FILED
1 Brian D. Whelan, Esq. (SBN 256534) 4/1/2021 11:11 AM
WHELAN LAW GROUP, A Professional Corporation Superior Court of California
2 1827 East Fir Avenue, Suite 110
93720
County of Fresno
Fresno,California
3 Telephone: (559) 437-1079 By: E Alvarado, Deputy
Facsimile: (559) 437-1720
E-mail: brian@whelanlawggoup.com
Attorneys for: Defendant DANIEL ASHLEY
\oooqam-J:
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF FRESNO, UNLIMITED CIVIL DIVISION
10 KATHLEEN REGAN SLATIC, ) Case No. 19CECG04036
)
11 Plaintiff, )
DEFENDANT'S MEMORANDUM OF
)
POINTS AND AUTHORITIES IN
12 v. ) SUPPORT 0F MOTION TO STRIKE
)
PORTIONS OF THE SECOND AMENDED
13 DANIEL PAUL ASHLEY and DOES 1 ) COMPLAINT
through 20, inclusive, )
14 ) Date: September 16, 2021
Defendants. ) Time: 3:30 pm.
15 ) Dept: 502
)
16 ) Action Filed: November 6, 2019
) Trial Date: None Set
17
18
19 Comes now, Defendant DANIEL PAUL ASHLEY (“Defendant”), who hereby submits the
20 following Memorandum 0f Points and Authorities filed in support of his Motion to Strike Portions
21 of the Second Amended Compliant (“SAC”) filed by Plaintiff KATHLEEN REGAN SLATIC
22 (“Plaintiff”).
23 I.
24 INTRODUCTION.
25 Defendant brings this motion to strike portions ofthe SAC because Plaintiff s recent changes
26 to her complaint do not fix the problems raised by this Court when it granted Defendant’s motion
27 to strike portions of Plaintiff‘s First Amended Complaint on January 28, 2021.
28 ////
Wham Law Group,
A Professional Corporau‘on
1827 East Fir Avenue, Suite 110 1
Fresno. Califomna 93720
Tel: 559-4374 079
F“: 5594374720 DEFENDANT'S NOTICE OF MOTION AND M056CgINPERISNTI‘RlKE PORTIONS OF THE SECOND AMENDED
II.
1
2
HISTORY.
Plaintiff filed this lawsuit on November 6, 2019. In the complaint, Plaintiff claimed
3
that Defendant anally raped her on December 10 2016. On eight separate and discrete occasions,
4
Plaintiffproclaimed that December 10 2016 was the day. (Complaint, paras. 7, 9, 10, 11, 16, 19
5
(twice), 21 .)This day, according to Plaintiff, was December 10 2010. To be sure. Eight times.
6
Plaintiffrepeated herself. Afier years of thoughtful deliberation. This was the day. No mistaking
7
itonce, not twice, not eight times
— ignoring the four restatements of the date by incorporation by
8
9
reference within the causes of action. A substantive fact and a substantive date, if ever there were
one.
1 0
However, as truth would really have it,December 10 2016 was not a day that any rape
11
occurred — or ever. No. Instead, this was a day that Plaintiff admitted in writing to her fi'iend that
1 2
she had consented to the sexual conduct that she now maliciously sues Mr. Ashley over.
13
In 201 9, and for 2019 unlawful acts, Defendant Ashley sued Ms. Slatic and others for
1 4
defamation (Case No. 19CECGO4593 “Defamation Case”). On February 5, 2020, Mr. Ashley
1 5
submitted a declaration in the Defamation Case which entirely unwound and sunk this entire
16
scurrilous lawsuit:
17
“I also saw a number of text messages in December 201 6 where Kathleen was talking
18
about a lot of the private and intimate details of our then sex-life with her ffiends.
Specifically, Kathleen went into graphic detail with her fl'iends in text message about her
19 “I
consensual experiences with me in mid December 2016 (i.e. let him [Emphasis
added] put it in my butt. Big mistake man.” which was communicated to Chelsea Lynn
20
Johnson at 12/10/16 1:12:42 PM GMT-8-- though now Kathleen claims this consensual
act was actually a rape earlier that day.) Kathleen shared private details about very private
21
things, of which I did not know until she granted me access to see about her “sugar
” 10 filed February 5, 2020 in Defamation Case.)
dadies.” (Dec. Daniel Ashley, para.
22
23
In response, Ms. Slatic made fl [false] claims in this lawsuit. However, she chose them
too late. On July 22, 2020, Ms. Slatic filed her First Amended Complaint, and changed allofthe
24
dates, thus making up new and late claims. Ms. Slatic picked December 2, 2016 for the new
25
26 event and new anal rape claim.
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Wham Law Group,
A pmfesmna] Carpomon
1827 East Flt Avenue, Suit: 110 2
Fresno, California 93720
5594374079
Tel:
F”: 559437472" DEFENDANT'S NOTICE OF MOTION AND M0(':I‘(I)(R’INPITJ(A)ISNIFRIKE PORTIONS OF THE SECOND AMENDED
Defendant filed a motion to strike, which was heard by this Court on January 28, 2021.
1
The Court granted Defendant’s motion to strike in its entirety, but also granted Plaintiff leave to
2
amend her complaint to allege that the wrongful acts in December 2016, which would otherwise
3
4
be time-barred, occurred within an ongoing relationship (thereby triggering an exception to the
statute of limitations issue).
5
6
However, Plaintist Second Amended Complaint does not cure any ofthe problems
raised by this Court. If anything, itonly makes matters worse for Plaintiff. She now alleges the
7
“shortly before December 2, 2016,” Plaintiff and Defendant’s relationship ended (which was
8
changed from the later December 10, 2016 date). Thus, any alleged wrongful conduct that took
9
place after the relationship ended (“shortly before December 2, 201 6” — in other words any
10
wrongful conduct from December 2, 2016 onward), cannot be saved by the “continuing tort
11
within a relationship” exception addressed by Pugliese v. Superior Court, (2007) 146
1 2
Cal.App.4th 1444. Therefore, Plaintiff’s allegations in her SAC supporting claims that are
13
barred by the statute of limitations should be struck.
1 4
III.
1 5
16
LEGAL STANDARD
17
A pany may serve and file a notice of motion to strike the whole or any part of a pleading
within the time allowed to respond to a pleading. (Code Civ. Proc.§ 435(b)(l).) The grounds for a
18
motion to strike are found in Code of Civil Procedure section 436, which provides:
19
The court may, upon a motion pursuant to Section 436, or at any time
20
in its discretion, and upon terms it deems proper:
21
(a) Strike out any irrelevant, false, or improper matter interested in
any pleading.
22
(b) Strike out all or any part of any pleading not drawn or filed in
23
conformity with the laws of this state, a court rule, or an order of the
court.
24
An irrelevant allegation is defined in Code of Civil Procedure section 43 1 .1 O(b ), which
25
provides that:
26
(1) An allegation that is not essential to the statement of a claim or
defense.
27
28 (2) An allegation that is neither pertinent to nor supported by an
Wan Law Group: otherwise sufficient claim or defense.
A meessmnal Corpsman
Em Pu Avenue, Suite no
1327 3
caleomm 93720
Fresno,
559743771079
Tel.
Fm 5594374720 DEFENDANT'S NOTICE 0F MOTION AND MogggPPERI¥TRIKE PORTIONS 0F THE SECOND AMENDED
1
(3) A demand for judgment requesting relief not supported by the
allegations of the complaint or cross complaint.
2
A motion to strike must be based on the face ofthe pleading or on information that the court
3
may employ to take judicial notice. (Code Civ. Proc. § 437.)
4
IV.
5
LAW AND ARGUMENT
6
A. The Statute of Limitations on the Second and Third Causes of Action Are Three Years
and Thus Claims Within Those Causes of Action. Supporting Those Claims. But
7
'
Having Been Filed Outside of the Statute of Limitations Must Be Struck as Time
8
Barred Claims.
For the second and third causes of action, the applicable statute of limitations is three years.
9
10
Because both causes of action in the SAC rely on two events, one on December 2, 2020 and another
on December 15, 2020, and the December 2, 2020 event is time barred (Plaintiffhas not added any
1 1
12
allegations to her SAC to support that these alleged acts took place within an ongoing relationship),
in both causes of action references to the time—barred claim should be struck.
13
1. The Three-Year Statute of Limitations for a Civil Code Section 1708.6 Claim
14
(Second Cause of Action) Bars the New December 2 2016 Claim .
15
The time for commencement of an action under Civil Code Section 1708.6 is governed by
16
Section 340.15 ofthe Code ofCivil Procedure. (Civil Code Section 1708.6 (6).) Section 340.15 of
17
Code of Civil Procedure sets forth the following:
18
In any civil action for recovery of damages suffered as a result of domestic violence, the time
for commencement of the action shall be the later of the following:
19
(1) Within three years from the date of the last act of domestic violence by the defendant
20
against the plaintiff.
21
(2) Within three years from the date the plaintiff discovers 0r reasonably should have
discovered that an injury or illness resulted from an act ofdomestic violence by the defendant
22
against the plaintiff. CCP (Section 340.15.)
23
Thus, the statute of limitations is three years. The date of the last qualifying contact, as
24
alleged in the SAC, was December 15, 2016. (SAC, Para. 17.) Consequently a claim under this
25
section would have to have been made 0n or before December 15, 20 1 9. Because Plaintiffmade the
26
new claim more than three years afier the event, the references thereto are beyond the statute of
27
limitations and should thus be struck from the cause of action. The portions of the SAC that need
mi“?
28
W 4
Fresno, California 93720
559437-1079
Tel:
F“: 559457472“ DEFENDANT'S NOTICE OF MOTION AND M066%PERI%TIRIKE PORTIONS OF THE SECOND AMENDED
to be struck are paragraphs 16 and any prior paragraph that incorporates by reference the new claim
1
(including paras. 7, 9, 10, and 11) as well as the new allegations, in bold, in paragraphs 17 through
2
3
23. Plaintiff s new allegations that the relationship ended “shortly before December 2, 20 1 6” do not
change this analysis — in fact, they support it.
4
2. The Three—Year Statute of Limitations for a Civil Code Section 52.4 Claim
(Third Cause of Action) Bars the New December 2. 2016 Claim.
The time for commencement of an action under Civil Code Section 52.4 is three years:
“An action brought pursuant to this section shall be commenced within three years ofthe act,
\DOONO or if the victim was a minor when the act occurred, within eight years after the date the
plaintiff attains the age ofmajority or within three years afier the date the plaintiff discovers
or reasonably should have discovered the psychological injury or illness occurring afier the
age of majority that was caused by the act, whichever date occurs later.”
10
(Civil Code Section 52.4.)
Thus, the statute of limitations is three years. Consequently a claim under this section for
11
December 2, 2016 acts, would have to have been made 0n or before December 2, 2019. Because
12
Plaintiff made the new claim afier the statute had run, the references thereto are beyond the statute
1 3
of limitations and should thus be struck from the SAC. The portions of the SAC that needs to be
14
struck are paragraphs 19 and any prior paragraph that incorporates by reference the new claim
15
(including paras. 7, 9, 10, 11, and 16) as well as the new allegations, in bold, in paragaphs 26
16
through 27. Again, Plaintiff s new allegations that the relationship ended “shortly before December
17
2, 2016” do not change this analysis — in fact, they support it.
1 8
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Wham. Law Group»
Iggfizftifixflézz'izztfisno 5
Wméiiizzi'giém
F“ 559437472" DEFENDANT'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED
COMPLAINT
4
1
2
3
statute of limitations be struck.
w
certain,
V.
Defendant respectfully request that the claims within the
To be this
SAC added beyond the applicable
impacts the second and third cause of actions
predicated on the new December 2, 2016 claims. Furthermore, Plaintiffshould not be granted leave
5
to amend because she should not be allowed t0 contradict her prior judicial admissions that the
6
relationship ended before December 2, 2016 (or December 10, 2016 for that matter).
7
8
9
Dated: April 1,2021 WHELA 0UP,'
A Pro si rpor
10
11
By Brian P{Wilelan,
Attorneys Defendant DANIEL ASHLEY
12
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15
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mum Law Group}
F“ 559457
”2° DEFENDANT'S NOTICE 0F MOTION AND M056%E(A)I%TTRIKE PORTIONS 0F THE SECOND AMENDED
PROOF OF SERVICE
I am employed in the County of Fresno, State of California. I am over the age of 1 8
2
years and not a party to this action. My business address is: Whelan Law Group, A Professional
Corporation, 1827 East Fir Avenue, Suite 1 10, Fresno, California 93720. On April 1, 2021, I caused
3
to be served the within document(s): DEFENDANT'S MEMORANDUM OF
A POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE
PORTIONS 0F THE SECOND AMENDED COMPLAINT
( ) VIA FAX: by causing to be transmitted via facsimile the document(s) listed above to
the fax number(s) set forth below on this date.
( ) BY HAND DELIVERY: by causing to be personally delivered the document(s) listed
\OOOQOM
above to the person(s) at the address(es) set forth below on this date.
( ) BY MAIL: by placing the envelope, addressed to addresses below, for collection and
mailing on the date following our ordinary business practices. I am readily familiar with
this business' practice for collecting and processing correspondence for mailing. On the
same day that correspondence is placed for collection and mailing, itis deposited in the
10
ordinary course of business with the United States Postal Service in a sealed envelope
with postage fillly paid.
11
12 ( ) BY PERSONAL SERVICE: by causing document(s) listed above to be personally
served to the person(s) at the address(es) set forth below.
13
( ) BY EXPRESS MAIL DELIVERY: by causing document(s) listed above to be
deposited with the United States Express Mail Service for delivery to the person(s) at the
14
address(es) set forth below.
15
(X) BY ELECTRONIC SERVICE: by causing document(s) listed above to be
electronically mailed to the e-mail addresses listed below.
16
17 Justin Vecchiarelli, Esq.
Proper Defense Law Corporation
18 677 W. Palmdon Drive, Suite #201,
Fresno, CA 93 704
19 Tel: (559) 825-3800
Fax: (559) 705-1870
20 E-Mail:
iustinga)properdefenselaw.com
21 lindagszroperdefenselaw.com
22
Counsel for Kathleen Slatic
23
24 I declare under penalty of perjury under the laws of the State of California that the
25 foregoing is true and correct.
26 Executed on April 2021, Fresno, ,,
l, at
California/C (K
"”7;
27 C
ST'ACFY VUE
28
Whelan Law Group,
A Professional Corpomuon
B5!
1827 Suite 110
Avenue,
Fir 7
Fresno, Califorma 93720
Tel: 559—437-1079
F“: 559437472” DEFENDANT'S NOTICE OF MOTION AND Mogéggpil‘dglfili‘RIKE PORTIONS 0F THE SECOND AMENDED
Preview
E-FILED 1 Brian D. Whelan, Esq. (SBN 256534) 4/1/2021 11:11 AM WHELAN LAW GROUP, A Professional Corporation Superior Court of California 2 1827 East Fir Avenue, Suite 110 93720 County of Fresno Fresno,California 3 Telephone: (559) 437-1079 By: E Alvarado, Deputy Facsimile: (559) 437-1720 E-mail: brian@whelanlawggoup.com Attorneys for: Defendant DANIEL ASHLEY \oooqam-J: SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO, UNLIMITED CIVIL DIVISION 10 KATHLEEN REGAN SLATIC, ) Case No. 19CECG04036 ) 11 Plaintiff, ) DEFENDANT'S MEMORANDUM OF ) POINTS AND AUTHORITIES IN 12 v. ) SUPPORT 0F MOTION TO STRIKE ) PORTIONS OF THE SECOND AMENDED 13 DANIEL PAUL ASHLEY and DOES 1 ) COMPLAINT through 20, inclusive, ) 14 ) Date: September 16, 2021 Defendants. ) Time: 3:30 pm. 15 ) Dept: 502 ) 16 ) Action Filed: November 6, 2019 ) Trial Date: None Set 17 18 19 Comes now, Defendant DANIEL PAUL ASHLEY (“Defendant”), who hereby submits the 20 following Memorandum 0f Points and Authorities filed in support of his Motion to Strike Portions 21 of the Second Amended Compliant (“SAC”) filed by Plaintiff KATHLEEN REGAN SLATIC 22 (“Plaintiff”). 23 I. 24 INTRODUCTION. 25 Defendant brings this motion to strike portions ofthe SAC because Plaintiff s recent changes 26 to her complaint do not fix the problems raised by this Court when it granted Defendant’s motion 27 to strike portions of Plaintiff‘s First Amended Complaint on January 28, 2021. 28 //// Wham Law Group, A Professional Corporau‘on 1827 East Fir Avenue, Suite 110 1 Fresno. Califomna 93720 Tel: 559-4374 079 F“: 5594374720 DEFENDANT'S NOTICE OF MOTION AND M056CgINPERISNTI‘RlKE PORTIONS OF THE SECOND AMENDED II. 1 2 HISTORY. Plaintiff filed this lawsuit on November 6, 2019. In the complaint, Plaintiff claimed 3 that Defendant anally raped her on December 10 2016. On eight separate and discrete occasions, 4 Plaintiffproclaimed that December 10 2016 was the day. (Complaint, paras. 7, 9, 10, 11, 16, 19 5 (twice), 21 .)This day, according to Plaintiff, was December 10 2010. To be sure. Eight times. 6 Plaintiffrepeated herself. Afier years of thoughtful deliberation. This was the day. No mistaking 7 itonce, not twice, not eight times — ignoring the four restatements of the date by incorporation by 8 9 reference within the causes of action. A substantive fact and a substantive date, if ever there were one. 1 0 However, as truth would really have it,December 10 2016 was not a day that any rape 11 occurred — or ever. No. Instead, this was a day that Plaintiff admitted in writing to her fi'iend that 1 2 she had consented to the sexual conduct that she now maliciously sues Mr. Ashley over. 13 In 201 9, and for 2019 unlawful acts, Defendant Ashley sued Ms. Slatic and others for 1 4 defamation (Case No. 19CECGO4593 “Defamation Case”). On February 5, 2020, Mr. Ashley 1 5 submitted a declaration in the Defamation Case which entirely unwound and sunk this entire 16 scurrilous lawsuit: 17 “I also saw a number of text messages in December 201 6 where Kathleen was talking 18 about a lot of the private and intimate details of our then sex-life with her ffiends. Specifically, Kathleen went into graphic detail with her fl'iends in text message about her 19 “I consensual experiences with me in mid December 2016 (i.e. let him [Emphasis added] put it in my butt. Big mistake man.” which was communicated to Chelsea Lynn 20 Johnson at 12/10/16 1:12:42 PM GMT-8-- though now Kathleen claims this consensual act was actually a rape earlier that day.) Kathleen shared private details about very private 21 things, of which I did not know until she granted me access to see about her “sugar ” 10 filed February 5, 2020 in Defamation Case.) dadies.” (Dec. Daniel Ashley, para. 22 23 In response, Ms. Slatic made fl [false] claims in this lawsuit. However, she chose them too late. On July 22, 2020, Ms. Slatic filed her First Amended Complaint, and changed allofthe 24 dates, thus making up new and late claims. Ms. Slatic picked December 2, 2016 for the new 25 26 event and new anal rape claim. //// 27 //// 28 Wham Law Group, A pmfesmna] Carpomon 1827 East Flt Avenue, Suit: 110 2 Fresno, California 93720 5594374079 Tel: F”: 559437472" DEFENDANT'S NOTICE OF MOTION AND M0(':I‘(I)(R’INPITJ(A)ISNIFRIKE PORTIONS OF THE SECOND AMENDED Defendant filed a motion to strike, which was heard by this Court on January 28, 2021. 1 The Court granted Defendant’s motion to strike in its entirety, but also granted Plaintiff leave to 2 amend her complaint to allege that the wrongful acts in December 2016, which would otherwise 3 4 be time-barred, occurred within an ongoing relationship (thereby triggering an exception to the statute of limitations issue). 5 6 However, Plaintist Second Amended Complaint does not cure any ofthe problems raised by this Court. If anything, itonly makes matters worse for Plaintiff. She now alleges the 7 “shortly before December 2, 2016,” Plaintiff and Defendant’s relationship ended (which was 8 changed from the later December 10, 2016 date). Thus, any alleged wrongful conduct that took 9 place after the relationship ended (“shortly before December 2, 201 6” — in other words any 10 wrongful conduct from December 2, 2016 onward), cannot be saved by the “continuing tort 11 within a relationship” exception addressed by Pugliese v. Superior Court, (2007) 146 1 2 Cal.App.4th 1444. Therefore, Plaintiff’s allegations in her SAC supporting claims that are 13 barred by the statute of limitations should be struck. 1 4 III. 1 5 16 LEGAL STANDARD 17 A pany may serve and file a notice of motion to strike the whole or any part of a pleading within the time allowed to respond to a pleading. (Code Civ. Proc.§ 435(b)(l).) The grounds for a 18 motion to strike are found in Code of Civil Procedure section 436, which provides: 19 The court may, upon a motion pursuant to Section 436, or at any time 20 in its discretion, and upon terms it deems proper: 21 (a) Strike out any irrelevant, false, or improper matter interested in any pleading. 22 (b) Strike out all or any part of any pleading not drawn or filed in 23 conformity with the laws of this state, a court rule, or an order of the court. 24 An irrelevant allegation is defined in Code of Civil Procedure section 43 1 .1 O(b ), which 25 provides that: 26 (1) An allegation that is not essential to the statement of a claim or defense. 27 28 (2) An allegation that is neither pertinent to nor supported by an Wan Law Group: otherwise sufficient claim or defense. A meessmnal Corpsman Em Pu Avenue, Suite no 1327 3 caleomm 93720 Fresno, 559743771079 Tel. Fm 5594374720 DEFENDANT'S NOTICE 0F MOTION AND MogggPPERI¥TRIKE PORTIONS 0F THE SECOND AMENDED 1 (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross complaint. 2 A motion to strike must be based on the face ofthe pleading or on information that the court 3 may employ to take judicial notice. (Code Civ. Proc. § 437.) 4 IV. 5 LAW AND ARGUMENT 6 A. The Statute of Limitations on the Second and Third Causes of Action Are Three Years and Thus Claims Within Those Causes of Action. Supporting Those Claims. But 7 ' Having Been Filed Outside of the Statute of Limitations Must Be Struck as Time 8 Barred Claims. For the second and third causes of action, the applicable statute of limitations is three years. 9 10 Because both causes of action in the SAC rely on two events, one on December 2, 2020 and another on December 15, 2020, and the December 2, 2020 event is time barred (Plaintiffhas not added any 1 1 12 allegations to her SAC to support that these alleged acts took place within an ongoing relationship), in both causes of action references to the time—barred claim should be struck. 13 1. The Three-Year Statute of Limitations for a Civil Code Section 1708.6 Claim 14 (Second Cause of Action) Bars the New December 2 2016 Claim . 15 The time for commencement of an action under Civil Code Section 1708.6 is governed by 16 Section 340.15 ofthe Code ofCivil Procedure. (Civil Code Section 1708.6 (6).) Section 340.15 of 17 Code of Civil Procedure sets forth the following: 18 In any civil action for recovery of damages suffered as a result of domestic violence, the time for commencement of the action shall be the later of the following: 19 (1) Within three years from the date of the last act of domestic violence by the defendant 20 against the plaintiff. 21 (2) Within three years from the date the plaintiff discovers 0r reasonably should have discovered that an injury or illness resulted from an act ofdomestic violence by the defendant 22 against the plaintiff. CCP (Section 340.15.) 23 Thus, the statute of limitations is three years. The date of the last qualifying contact, as 24 alleged in the SAC, was December 15, 2016. (SAC, Para. 17.) Consequently a claim under this 25 section would have to have been made 0n or before December 15, 20 1 9. Because Plaintiffmade the 26 new claim more than three years afier the event, the references thereto are beyond the statute of 27 limitations and should thus be struck from the cause of action. The portions of the SAC that need mi“? 28 W 4 Fresno, California 93720 559437-1079 Tel: F“: 559457472“ DEFENDANT'S NOTICE OF MOTION AND M066%PERI%TIRIKE PORTIONS OF THE SECOND AMENDED to be struck are paragraphs 16 and any prior paragraph that incorporates by reference the new claim 1 (including paras. 7, 9, 10, and 11) as well as the new allegations, in bold, in paragraphs 17 through 2 3 23. Plaintiff s new allegations that the relationship ended “shortly before December 2, 20 1 6” do not change this analysis — in fact, they support it. 4 2. The Three—Year Statute of Limitations for a Civil Code Section 52.4 Claim (Third Cause of Action) Bars the New December 2. 2016 Claim. The time for commencement of an action under Civil Code Section 52.4 is three years: “An action brought pursuant to this section shall be commenced within three years ofthe act, \DOONO or if the victim was a minor when the act occurred, within eight years after the date the plaintiff attains the age ofmajority or within three years afier the date the plaintiff discovers or reasonably should have discovered the psychological injury or illness occurring afier the age of majority that was caused by the act, whichever date occurs later.” 10 (Civil Code Section 52.4.) Thus, the statute of limitations is three years. Consequently a claim under this section for 11 December 2, 2016 acts, would have to have been made 0n or before December 2, 2019. Because 12 Plaintiff made the new claim afier the statute had run, the references thereto are beyond the statute 1 3 of limitations and should thus be struck from the SAC. The portions of the SAC that needs to be 14 struck are paragraphs 19 and any prior paragraph that incorporates by reference the new claim 15 (including paras. 7, 9, 10, 11, and 16) as well as the new allegations, in bold, in paragaphs 26 16 through 27. Again, Plaintiff s new allegations that the relationship ended “shortly before December 17 2, 2016” do not change this analysis — in fact, they support it. 1 8 //// 19 //// 20 //// 21 //// 22 //// 23 //// 24 //// 25 //// 26 //// 27 //// 28 Wham. Law Group» Iggfizftifixflézz'izztfisno 5 Wméiiizzi'giém F“ 559437472" DEFENDANT'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED COMPLAINT 4 1 2 3 statute of limitations be struck. w certain, V. Defendant respectfully request that the claims within the To be this SAC added beyond the applicable impacts the second and third cause of actions predicated on the new December 2, 2016 claims. Furthermore, Plaintiffshould not be granted leave 5 to amend because she should not be allowed t0 contradict her prior judicial admissions that the 6 relationship ended before December 2, 2016 (or December 10, 2016 for that matter). 7 8 9 Dated: April 1,2021 WHELA 0UP,' A Pro si rpor 10 11 By Brian P{Wilelan, Attorneys Defendant DANIEL ASHLEY 12 13 14 15 16 1 7 18 19 20 21 22 23 24 25 26 27 28 mum Law Group} F“ 559457 ”2° DEFENDANT'S NOTICE 0F MOTION AND M056%E(A)I%TTRIKE PORTIONS 0F THE SECOND AMENDED PROOF OF SERVICE I am employed in the County of Fresno, State of California. I am over the age of 1 8 2 years and not a party to this action. My business address is: Whelan Law Group, A Professional Corporation, 1827 East Fir Avenue, Suite 1 10, Fresno, California 93720. On April 1, 2021, I caused 3 to be served the within document(s): DEFENDANT'S MEMORANDUM OF A POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS 0F THE SECOND AMENDED COMPLAINT ( ) VIA FAX: by causing to be transmitted via facsimile the document(s) listed above to the fax number(s) set forth below on this date. ( ) BY HAND DELIVERY: by causing to be personally delivered the document(s) listed \OOOQOM above to the person(s) at the address(es) set forth below on this date. ( ) BY MAIL: by placing the envelope, addressed to addresses below, for collection and mailing on the date following our ordinary business practices. I am readily familiar with this business' practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, itis deposited in the 10 ordinary course of business with the United States Postal Service in a sealed envelope with postage fillly paid. 11 12 ( ) BY PERSONAL SERVICE: by causing document(s) listed above to be personally served to the person(s) at the address(es) set forth below. 13 ( ) BY EXPRESS MAIL DELIVERY: by causing document(s) listed above to be deposited with the United States Express Mail Service for delivery to the person(s) at the 14 address(es) set forth below. 15 (X) BY ELECTRONIC SERVICE: by causing document(s) listed above to be electronically mailed to the e-mail addresses listed below. 16 17 Justin Vecchiarelli, Esq. Proper Defense Law Corporation 18 677 W. Palmdon Drive, Suite #201, Fresno, CA 93 704 19 Tel: (559) 825-3800 Fax: (559) 705-1870 20 E-Mail: iustinga)properdefenselaw.com 21 lindagszroperdefenselaw.com 22 Counsel for Kathleen Slatic 23 24 I declare under penalty of perjury under the laws of the State of California that the 25 foregoing is true and correct. 26 Executed on April 2021, Fresno, ,, l, at California/C (K "”7; 27 C ST'ACFY VUE 28 Whelan Law Group, A Professional Corpomuon B5! 1827 Suite 110 Avenue, Fir 7 Fresno, Califorma 93720 Tel: 559—437-1079 F“: 559437472” DEFENDANT'S NOTICE OF MOTION AND Mogéggpil‘dglfili‘RIKE PORTIONS 0F THE SECOND AMENDED