Judge: Mitchell L. Beckloff, Case: 22STCP01432, Date: 2023-05-05 Tentative Ruling
Case Number: 22STCP01432 Hearing Date: May 5, 2023 Dept: 86
CHEUNG
v. CITY OF SOUTH PASADENA
Case
Number: 22STCP01432
Hearing
Date: May 5, 2023
[Tentative] ORDER GRANTING
MOTION TO STRIKE
The
motion to strike is granted except as to paragraph 40. The court strikes paragraph
18, paragraph 39(D) and section VI (paragraph 41 and its subparts) in the SAP.
STANDARD OF
REVIEW
Courts may, upon a motion, strike any irrelevant,
false, or improper matter inserted in any pleading. (Code
Civ. Proc., § 436, subd. (a).) Courts may also strike 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. (Id., subd. (b).) The grounds for
moving to strike must appear on the face of the pleading or by way of judicial
notice. (Id.,
§ 437.)
ANALYSIS
On
demurrer to the first amended petition, the City’s successful demurrer argued
the claims in the first amended petition were untimely, and Petitioner failed
to exhaust his administrative remedies as to the claims.
In
its order sustaining the demurrer, the court specifically stated:
“As a
preliminary matter, the City argues that Petitioner’s challenge is not to the
2021 grading and excavation permits. The City argues Petitioner challenges the underlying
2016 hillside development permit. If the City’s position is correct, Petitioner
may not proceed on his claim because it is time barred and he failed to exhaust
his administrative remedies.” (10/21/2022 Order, p. 2.)
That
is, the court’s order was clear Petitioner had no ability to prosecute a claim
arising from the 2016 hillside development permit. Thus, when the court granted
Petitioner leave to amend the first amended petition, the court did so for the
narrow purpose of clarifying the claim the 2021 permits are not in conformity
with the 2016 hillside development permit or the South Pasadena Municipal Code.
The
City now seeks to strike certain allegations it contends violate the court’s order
by exceeding the scope of leave to amend granted by the court. Specifically,
the City seeks to strike allegations that the 2021 permit must be invalidated because
it flows from the “fruit of the poisonous tree” that is the 2016 hillside
development permit.
Petitioner
argues if he cannot rely on the “expired and voided” 2016 hillside development permit
to support his legal claim against the 2021 permit, the City should not be able
to rely on this “VOIDED 2016 Approval.” (Opposition 4:7-18.) Petitioner also
argues the merits of his “fruit of the poisonous tree” theory.
It
appears Petitioner may have misunderstood the court’s earlier ruling. The
court’s decided Petitioner cannot legally challenge the validity of the 2016 hillside
development permit. Whether Petitioner’s substantive arguments might have merit
is of no moment. The court found the time to permitted to challenge the 2016
hillside development permit had long passed—any claim based on the City’s
decision with the 2016 hillside development permit is time barred. That
Petitioner missed any opportunity to challenge the 2016 hillside development permit
does not make the City’s position hypocritical. (Opposition 6:26-27.) The time to
challenge the 2016 hillside development permit has passed and the court cannot
hear any such challenge now. Petitioner is free, however, to pursue his other
claims.
CONCLUSION
Based on the foregoing, the motion to strike is
granted except as to paragraph 40.[1]
IT IS SO
ORDERED.
May
5, 2023 ________________________________
Hon. Mitchell
Beckloff
Judge of the
Superior Court