Judge James L. Crandall, Case 21-1230198 2022-10-06 Tentative Ruling

Judge: James L. Crandall, Case: 21-1230198, Date: 2022-10-06 Tentative Ruling

1. Demurrer to Petition

The demurrer of Respondent California Unemployment Insurance Appeals Board and Real Parties in Interest Employment Development Department and Nancy Farias, in her official capacity as Director of Employment Development Department, is SUSTAINED without leave to amend.

Petitioner’s opposition to the demurrer, filed under ROA 468, is over 30 pages long. The page limit for the opposition under California Rules of Court, Rule 3.1113 is 15 pages. Petitioner must follow the page limits set out under the Rules of Court.

Petitioner’s reliance on the Federal Rules of Civil Procedure is improper because the California Code of Civil Procedure governs this state court action.

Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023, states:

“Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. (People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785, 57 Cal.Rptr. 227 [leave to amend complaint does not constitute leave to amend to add new defendant].) The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. (See Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015, 84 Cal.Rptr.3d 642 [acknowledging rule but finding it inapplicable where new cause of action “directly responds” to trial court's reason for sustaining the demurrer].)”

Here, Petitioner’s First Amended Petition for Peremptory Writ of Mandate alleged a single cause of action for writ of mandate under Code of Civil Procedure section 1094.5. The Court sustained the demurrer to the First Amended Petition on 5/12/22. The Court ruled that Petitioner could file a Second Amended Petition in order to address the defects in the First Amended Petition.

The Court did not grant Petitioner leave to amend to name additional parties and/or include additional causes of action.

However, in the Second Amended Petition filed on 5/12/22, Petitioner named an additional Real Party in Interest/Defendant – Nancy Farias, in her official capacity as Director of Employment Development Department.

Additionally, the Second Amended Petition lists seven causes of action in the caption and eleven causes of action in the body of the document.

Respondent and Real Parties have demurred to all but the eighth cause of action for writ of mandate under Code of Civil Procedure section 1094.5, which was the cause of action addressed in the prior demurrer.

Petitioner’s addition of a new party and new causes of action in addition to the cause of action for writ of mandate under section 1094.5, which was the subject of the prior demurrer, is not permitted without a Court order allowing Petitioner to name new parties and add new causes of action. Therefore, the Court sustains the demurrer as to (1) all causes of action against the new Real Party/Defendant Nancy Farias, and (2) all causes of action except for the eighth cause of action for writ of mandate under Code of Civil Procedure section 1094.5.

The demurrer is sustained without leave to amend because Petitioner has not cited any authority for addition of new causes of action and/or parties without leave of Court, and because moving parties have not demurred to Petitioner’s single remaining cause of action for writ of mandate, which was the subject of the Court’s prior ruling.

2. Motion to Strike

Code of Civil Procedure section 436 states,

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

In light of the Court’s ruling on the demurrer, the motion to strike is moot as to the allegations in the 1st-7th and 9th-11th causes of action, including paragraph 111, which is within the first cause of action.

As to paragraph 151, the Court grants the motion as to the allegation that Plaintiff prays for relief “on behalf of the Self-employed Individuals may proper as similarly situated if the court consider proper...” This allegation is improper and irrelevant because Plaintiff is pursuing this action individually, in pro per, and has not stated any claim by other self-employed individuals.

Moving parties also seek to strike page 62, lines 1-3 of the Second Amended Petition which requests a jury trial. Petitioner’s sole remaining cause of action for writ of mandate does not include a right to jury trial. (Code Civ. Proc. § 1094.5.) Therefore, the demand for jury trial is stricken.

Moving parties to give notice.

Future hearing dates

10/27/22 – Mtn. for Preliminary Injunction