Judge Lee W. Tsao, Case Number: 23NWCV02330, Date: 2023-12-28 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV02330, Date: 2023-12-28 Tentative Ruling

Case Number: 23NWCV02330 Hearing Date: December 28, 2023 Dept: C

GALVEZ v. GALVEZ

CASE NO.: 23NWCV02330

HEARING: 12/28/23 @ 10:30 a.m.

TENTATIVE ORDER

I. Defendant CARLA ASTRID GALVEZ’s Demurrer to Plaintiff’s Complaint is OFF-CALENDAR as MOOT.

II. Defendant CARLA ASTRID GALVEZ’s Motion to Strike Portions of Plaintiff’s Complaint is OFF-CALENDAR as MOOT.

Opposing Party to give notice.

Defendant CARLA ASTRID GALVEZ (“Defendant”) generally demurs to the first, second, fourth, fifth, sixth, seventh, and eighth causes of action in Plaintiff LUIS GALVEZ’s (“Plaintiff”) Complaint.

In Opposition to the subject Demurrer, Plaintiff cites to the Declaration of Luis Galvez, and argues that facts exist to overcome the arguments raised in Defendant’s Demurrer.

The Court has reviewed the Court file and no such Declaration of Luis Galvez has been filed or lodged with the Court. In Reply, Defendant also indicates that she has not received any Declaration of Luis Galvez.

There are new factual allegations cited throughout the Opposition that are apparently supported by the un-filed/un-served Declaration of Luis Galvez. These new allegations fall outside the four-walls of Plaintiff’s Complaint and are improperly considered when ruling on a Demurrer testing the sufficiency of the pleadings.

California recognizes “a general rule of…liberal allowance of amendments…” (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939.) It has also long been recognized that “even if the proposed legal theory is a novel one, ‘the preferable practice would be 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.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) In light of great liberality employed when ruling on a motion for leave to amend, the court will not normally consider the validity of the proposed amended pleading since grounds for demurrer or motion to strike are premature. Thus, absent prejudice to the opposing party, courts are bound to apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial.” (emphasis added.) (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.)

In the interests of judicial efficiency and in light of the liberal policy concerning amendments, the Court utilizes its discretion and places Defendant’s Demurrer and Motion to Strike Portions of Plaintiff’s Complaint OFF-CALENDAR as MOOT. Plaintiff is granted leave to file and serve a First Amended Complaint curing the defects to the first, second, fourth, fifth, sixth, seventh, and eighth causes of action raised by the subject Demurrer and Motion to Strike. Plaintiff is ORDERED to file and serve a First Amended Complaint by no later than 30 days from the date of the Court’s issuance of this Order.