Judge Serena R. Murillo, Case Number: 20STCV19168, Date: 2023-05-22 Tentative Ruling

Judge: Serena R. Murillo, Case: 20STCV19168, Date: 2023-05-22 Tentative Ruling

Case Number: 20STCV19168 Hearing Date: May 22, 2023 Dept: 31

Hearing on Demurrer and Motion to Strike Third Amended Complaint

TENTATIVE:
Defendant California Correctional Peace Officers Association’s Motion to Strike the Third Amended Complaint in its entirety is GRANTED. The Demurrer is moot.

Legal Standard

Demurrer –

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Motion to Strike -

The court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court 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. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Request for Judicial Notice

Defendant CCPOA requests that this court take judicial notice of the following items:

1. Minute Order, dated July 11, 2022, in Robles, et al. v. Hinojosa, et al., Los Angeles County Superior Court Case No. 20STCV19168.

2. Notice of Entry of Judgment, entered on July 28, 2022, in Robles, et al. v. Hinojosa, et al., Los Angeles County Superior Court Case No. 20STCV19168.

3. Minute Order, dated October 26, 2022, in Robles, et al. v. Hinojosa, et al., Los Angeles County Superior Court Case No. 20STCV19168.

4. Minute Order, dated November 15, 2022, in Robles, et al. v. Hinojosa, et al., Los Angeles County Superior Court Case No. 20STCV19168.

5. Notice of Demurrer and Demurrer of Defendant California Correctional Peace Officers Association to Plaintiffs’ Second Amended Complaint, filed on December 2, 2021, in Robles, et al. v. Hinojosa, et al., Los Angeles County Superior Court Case No. 20STCV19168.

6. Plaintiffs’ Opposition to Defendant California Correctional Peace Officers Association’s Demurrer, filed on May 23, 2022, in Robles, et al. v. Hinojosa, et al., Los Angeles County Superior Court Case No. 20STCV19168.

7. Plaintiffs’ Notice of Motion and Motion for Leave to Amend Third Amended Complaint, filed August 30, 2022, in Robles, et al. v. Hinojosa, et al., Los Angeles County Superior Court Case No. 20STCV19168.

Pursuant to CEC 452(d), this Court grants the request for judicial notice as to all items.

Discussion

Defendant CCPOA immediately points out in their Motion to Strike that Plaintiffs cannot amend the pleading as alleged against Defendant CCPOA unless Plaintiffs are first able to vacate the judgment for dismissal. (Motion, 10:21-25.) Supporting their contention, Defendant CCPOA cites Young v. Berry Equipment Rentals, Inc. (1976) 55 Cal.App.3d 35 [“Amendments proffered after judgment is rendered, however, are allowed only if the judgment is vacated…” Young supra, at 38]. Additionally, per the Minute Order dated November 15, 2022, leave to amend was denied for the TAC, yet Plaintiffs still filed it with this Court.

With this procedural defect comes a procedural remedy; Plaintiffs must first vacate the dismissal of Defendant CCPOA. Then Plaintiffs must request and be granted leave to amend. At this time Plaintiffs have failed to do either.

Conclusion

Accordingly, Defendant California Correctional Peace Officers Association’s Motion to Strike the Third Amended Complaint in its entirety is GRANTED. The Demurrer is moot.