Judge: Curtis A. Kin, Case: 23LBCP00344, Date: 2024-05-23 Tentative Ruling

Case Number: 23LBCP00344    Hearing Date: May 23, 2024    Dept: 86

MOTION FOR LEAVE TO FILE SECOND AMENDED PETITION

DEMURRER TO FIRST AMENDED VERIFIED PETITION

MOTION FOR JUDGMENT ON THE PLEADINGS

Date:               5/23/24 (1:30 PM)

Case:                           Supporters Alliance for Environmental Responsibility v. Long Beach, et al. (23LBCP00344)

TENTATIVE RULING:

Petitioner Supporters Alliance for Environmental Responsibility’s Motion for Leave to File Second Amended Petition is GRANTED.

Respondent California Coastal Commission’s Demurrer to First Amended Verified Petition is taken OFF-CALENDAR as MOOT.

Real Party in Interest Marina Shores Owner, LP’s Motion for Judgment on the Pleadings is taken OFF-CALENDAR as MOOT.

Real party in interest Marina Shores Owner, LP’s request for judicial notice is GRANTED, pursuant to Evidence Code § 452(d). Real party’s evidentiary objections are OVERRULED.

Petitioner seeks leave to file a Second Amended Petition to address arguments in the concurrently heard Demurrer filed by respondent California Coastal Commission (“Coastal Commission”) and Motion for Judgment on the Pleadings filed by real party in interest Marina Shores Owner, LP that petitioner did not timely name the Coastal Commission as a respondent until December 14, 2023, three days past the 60-day deadline set forth in Public Resources Code § 30801(a). Petitioner seeks to add allegations invoking the tolling provisions of CCP § 1010.6(e)(4)(E). (See Drury Decl. ¶ 6 & Ex. A at ¶¶ 123-128.) Petitioner seeks to allege that its counsel’s paralegal submitted the First Amended Petition to the One Legal electronic filing service for filing on December 11, 2023, the deadline to name the Coastal Commission as a respondent. (Drury Decl. Ex A at ¶¶ 123-125.) However, on December 14, 2023, the paralegal “was informed for the first time by One Legal that the First Amended Petition had not been filed with the Court.” (Drury Decl. Ex A at ¶ 126.) The paralegal re-filed the First Amended Petition through a different electronic filing service on the same date. (Drury Decl. Ex A ¶ 127.)

The Coastal Commission does not oppose petitioner’s motion. (Drury Decl. ¶ 10 & Ex. C [agreeing to stipulate to allow petitioner to amend].) Real party opposes the motion on the ground that the proposed Second Amended Petition is insufficient to invoke tolling under CCP § 1010.6. Real party faults petitioner for not having presented either a “confirmation of receipt” or “notice of rejection” evidencing petitioner’s attempt to file the First Amended Petition on December 11. (Opp. at 5; see CCP § 1010.6(a)(4)(A) [“Whichever of a court, an electronic filing service provider, or an electronic filing manager is the first to receive a document submitted for electronic filing shall promptly send a confirmation of receipt of the document indicating the date and time of receipt to the party or person who submitted the document”].)  Instead, contends real party, the First Amended Petition was only filed untimely on December 14. (Opp. at 5:20-23; RJN Ex. A.)

Real party’s arguments can be addressed with an appropriate attack on the pleadings. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [“[T]he preferable practice [is] to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings”].) It is true that “leave to amend may be denied where permitting an amendment would be futile . . . e.g., where the amendment does not state a cause of action.” (Singh v. Lipworth (2014) 227 Cal.App.4th 813, 828.) At this time, the Court declines to determine the sufficiency of the proposed pleading without the benefit of full and complete briefing with respect to any challenge to the operative pleading.

The motion for leave to amend is GRANTED. The Court notes that the proposed Second Amended Complaint, attached to counsel for petitioner’s supporting declaration as Exhibit A, referenced Exhibits A through D, but the exhibits were not attached to the proposed Second Amended Verified Petition. (See Drury Decl. ¶ 6 & Ex. A at ¶¶ 25-27, 125.) Paragraphs 25 to 27 of the proposed Second Amended Petition appear to reference the same Exhibits A to C attached to the First Amended Petition. Paragraph 125 of the proposed Second Amended Petition appears to reference the paralegal’s computer history, which was attached as Exhibit F to counsel for petitioner’s declaration. (Drury Decl. ¶ 13 & Ex. F.)

Within two (2) court days hereof, petitioner Supporters Alliance for Environmental Responsibility is ordered to file its Second Amended Petition, as proposed, with the exhibits as understood by the Court attached.

Based on the ruling on the motion for leave to amend, the Demurrer and Motion for Judgment on the Pleadings concerning the First Amended Verified Petition are taken OFF-CALENDAR as MOOT.