Judge Stephen P. Pfahler, Case Number: 19STCV06007, Date: 2024-01-31 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 19STCV06007, Date: 2024-01-31 Tentative Ruling

Case Number: 19STCV06007 Hearing Date: April 4, 2024 Dept: 68

Dept. 68

Date: 4-4-24 c/f 1-31-24

Case #: 19STCV06007 related to 19STCV05995

Trial Date: Not Set

DEMURRER TO THE THIRD AMENDED COMPLAINT/MOTION TO STRIKE

MOVING PARTY: Defendant, Los Angeles Unified School District

RESPONDING PARTY: Plaintiff, Javier Guerrero

RELIEF REQUESTED

Demurrer to the Third Amended Complaint

· 3^rd Cause of Action: Negligence Per Se

Motion to Strike

SUMMARY OF ACTION

Plaintiff Javier Guerrero, a 17-year old with Down Syndrome at the relevant time of school attendance, with defendant Los Angeles Unified School District (LAUSD), alleges the school district failed to ever provide any “formal assessment,” and therefore never developed an Individualized Education Plan.

On February 20, 2019, Plaintiff filed a complaint for Unruh Civil Rights Act, California Government Code section 11135, Intentional Infliction of Emotional Distress, Negligence, and Article I, Section 7(A) & Article IV, Section 16(A) of the California Constitution (19STCV06007). On March 11, 2019, Plaintiff filed a preemptory challenge thereby leading to assignment to Department 17. On August 27, 2019, the court found the later filed case was related to a previously filed Petition on the Government Claim, 19STCV05995, thereby leading to the assignment of all cases to Department 68.

On October 16, 2019, the court sustained the demurrer of LAUSD to the later filed case with 20 days leave to amend. The cases were subsequently removed to the Central District Federal Court, where the federal claims were tried, and then the cases were later transferred back to the LASC.

On April 10, 2023, Plaintiff filed a first amended complaint for California Disabled Persons Act, Cal. Civ. Code Section 54, et seq.; Violations of California Education Code sections 200, 201, 220, 262.4, 56381; Intentional Infliction of Emotional Distress; Violation of The Equal Protection Clause of the California Constitution, Article I, Section 7(A) & Article IV Section 16(A); Negligence; and, Negligence Per Se. On June 20, 2023, the court sustained the demurrer to the entire first amended complaint without leave to amend. The court entered judgment on July 5, 2023.

On September 13, 2023, the court entered an order granting Plaintiffs’ motion for new trial, and sustaining the demurrer to the first amended complaint as to the first, second, and third causes of action, and granting the motion to strike the claim for attorney fees. On October 3, 2023, Plaintiff filed a second amended complaint for Violation of The Equal Protection Clause of the California Constitution, Article I, Section 7(A) & Article IV Section 16(A); 42 U.S.C. section 1983 (Equal Protection Clause of the 14th Amendment); Negligence; and, Negligence Per Se. On November 14, 2023, pursuant to stipulation and order, Plaintiff filed a third amended complaint for California Constitution, Article I, Section 7(A) & Article IV Section 16(A); Negligence; and, Negligence Per Se.

Meanwhile, on November 2, 2023, the court denied the petition for relief from the claim filing requirement/leave to file a late claim. A notice of appeal was filed on December 27, 2023.

On March 20, 2024, the court continued the hearing to April 4, 2024.

RULING

Demurrer: Sustained without Leave to Amend.

Request for Judicial Notice: Granted.

The court takes judicial notice of the filed items, but cannot take judicial notice of the content of any and all items for the truth of the matter asserted. (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 147-148; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.) The orders also constitute unpublished material, and therefore not citable for any reference. (Cal. Rules of Court, rule 8.1115(a); Rittiman v. Public Utilities Com. (2022) 80 Cal.App.5th 1018, 1043 (footnote 18).) Nevertheless, the court can consider factual findings in prior orders for purposes of considering claim preclusion arguments.

Defendant Los Angeles Unified School District (LAUSD) brings the subject to demurrer to the third causes of action for Negligence Per Se. LAUSD contends the subject cause of action was impermissibly added without leave of court. Plaintiff in opposition conclusively dismisses the argument regarding the lack of leave to amend, and maintains the demurrer itself fails to actually challenge the merits of the negligence per se claim. Plaintiff presents argument in support of the validity of the added in cause of action. LAUSD in reply updates the court on the procedural history of the action, reiterates the basis of the demurrer, and notes the lack of substantive address regarding the addition of the negligence per se cause of action without leave of court.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“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. (Citation.) 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.” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023; People By and Through Dept. of Public Works v. Clausen (1967) 248 Cal.App.2d 770, 785; see Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456; Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.)

A review of the prior court orders shows no leave to amend to add in the negligence per se cause of action. On February 20, 2019, Plaintiff filed a complaint for Unruh Civil Rights Act, California Government Code section 11135, Intentional Infliction of Emotional Distress, Negligence, and Article I, Section 7(A) & Article IV, Section 16(A) of the California Constitution (19STCV06007). On October 16, 2019, the court sustained the demurrer of LAUSD with 20 days leave to amend.

In the September 13, 2023, order granting Plaintiffs’ motion for new trial, sustaining the demurrer to the first amended complaint as to the first, second, and third causes of action, without leave to amend, and granting the motion to strike the claim for attorney fees, the court rejected the proposed second amended complaint, and ordered Plaintiff to file a Second Amended Complaint in compliance with the order. On October 3, 2023, Plaintiff filed a second amended complaint for Violation of The Equal Protection Clause of the California Constitution, Article I, Section 7(A) & Article IV Section 16(A); 42 U.S.C. section 1983 (Equal Protection Clause of the 14th Amendment); Negligence; and, Negligence Per Se. On November 14, 2023, pursuant to stipulation and order, Plaintiff filed a third amended complaint for California Constitution, Article I, Section 7(A) & Article IV Section 16(A); Negligence; and, Negligence Per Se.

In addition to the lack of any order granting leave to amend, again, the opposition lacks any specific address of the course and conduct of the case leading to the addition of the subject cause of action. The September 13, 2023, order only allowed for the filing of the second amended complaint, and the stipulation for the third amended complaint presumably contemplated a subsequent challenge to the amended pleading.

Because the subject action has now proceeded through two rounds of challenges, the court finds no basis for sustaining the demurrer with leave to amend, only to continue this cycle. (Code Civ. Proc., § 430.41, subd. (e).) Plaintiff was presented with prior opportunities to obtain leave from the court, and apparently elected to forego the option. The demurrer is therefore sustained without leave to amend as to the negligence per se cause of action.

Motion to Strike: Granted in Part/Denied in Part/Moot in Part.

LAUSD moves to strike the third amended complaint: Paragraphs 40, 45-49, 52, 55, and page 17, section D., at 17:15-20:1 and paragraph 77, page 25, lines 27-28, where Plaintiff alleges the District faces liability for allegedly failing to “reassess” Plaintiff and not providing him the “triennial evaluations”; Paragraphs 87 and 89 of the Third Cause of Action at 27:5-16, where Plaintiff alleges violations of California Government Code section 11135 and California Education Code sections 200 et seq.; Paragraphs 40 through 42 in full, where Plaintiff names the three previously dismissed individual defendants.

LAUSD maintains the allegations regarding the “triennial evaluations” in paragraphs 40, 45-49, 52, 55, and page 17, section D., at 17:15-20:1 and paragraph 77, page 25, lines 27-28, where Plaintiff alleges the District faces liability for allegedly failing to “reassess” Plaintiff and not providing him the “triennial evaluations” are precluded under the doctrine of res judicata. LAUSD specifically relies on the findings of Judge Bernal in the District Court action on the “failure to reassess” claims. [Req. Jud. Not., Ex. 5.] Plaintiff in opposition denies the District Court making any ruling on the merits of the triennial evaluation claim. The court only found Plaintiffs failed to make sufficient arguments under federal law. Furthermore, the operative complaint states a claim under violation of California Government Code section 11135 as to the claims within the negligence per se cause of action. Plaintiff agrees to the motion to strike Paragraphs 40-42, and additionally moves for leave to amend, if applicable. LAUSD in reply again updates the court on the procedural history of the action, and reiterates the basis of the motion to strike, including res judicata and lack of any basis for the claims within the negligence per se cause of action.

The court finds the motion to strike the subject items on grounds of claim preclusion proper subject matter. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683 [While a demurrer is not the exclusive means to challenge a cause of action, a motion to strike generally applies to parts of a cause of action, claim for damages, or where the cause of action or primary right is barred as a matter of law.]; see Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281 [“Where a whole cause of action is the proper subject of a pleading challenge, the court should sustain a demurrer to the cause of action rather than grant a motion to strike”].)

The court considers the claim preclusion argument. “Claim preclusion applies when ‘(1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.’” (Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 226.)

The doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy. It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit. All claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897.) “Res Judicata is not a bar to claims arising after the filing of the initial complaint.” A party may assert new claims in an amended pleading, “but if no such pleading is filed, a plaintiff is not foreclosed. [Citation.] The general rule that a judgment is conclusive as to matters that could have been litigated ‘does not apply to new rights acquired pending the action which might have been, but which were not, required to be litigated [Citation]’.” (Allied Fire Protection v. Diede Const., Inc. (2005) 127 Cal.App.4th 150, 155; Planning and Conservation League v. Castaic Lake Water Agency, supra, 180 Cal.App.4th at 227.)

“In general, collateral estoppel precludes a party from relitigating issues litigated and decided in a prior proceeding. (Citations.) ‘Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. (Citation.)’” (Gikas v. Zolin (1993) 6 Cal.4th 841, 848–849.)

The court cites to the identified allegations, including portions beyond the scope of the request, for context:

“45. California special education law and LAUSD policy mandated that Plaintiff, like other students receiving special education, receive a psychoeducational evaluation every three years at minimum.

“46. Plaintiff was a student attending Lowman Special Education Center who was entitled to a triennial psycho-educational evaluation during the follow years: 2008, 2011, 2015, and 2018. Plaintiff was never provided the legally mandated evaluations over the course of these 10 years.

“47. District employee, Maria Zaragoza, who was the school psychologist at Lowman Special Education between 2012 to 2019 knowingly failed to provide Plaintiff a triennial evaluation throughout her tenure at Lowman Special Education Center.

“48. LAUSD school psychologist, Maria Zaragoza, was required to follow California Education Code Section 56381 and LAUSD’s triennial evaluation policy that required a triennial psycho-educational evaluation for students.

“49. As a direct result of Defendant Maria Zaragoza’s intentional violation of California Education Code 56381, Plaintiff’s parents were not provided the necessary information that would have informed them that he did not need to be segregated at a special education center. Consequently, Plaintiff suffered significant developmental, psychological, social, and emotional harm from his unlawful segregation that was caused by the District’s intentional decision to not provide legally mandated evaluations.

“52. During the 2016-2017 school year, the District was required to conduct a triennial psychoeducational evaluation for Javier pursuant to the California Education Code 56381 and the District’s Policy Bulletin 6639.0, titled “Three-Year Review Individualized Education Program (IEP) Psycho-Educational Reassessment Requirements,” dated February 1, 2016. This policy specifically states that an IEP team may not forego a student’s triennial special education evaluation if it was skipped at the previous triennial year. In Plaintiff’s case, his triennial psychoeducational evaluation had been skipped at three previous triennial years (in 2008, 2011, and 2015), meaning Plaintiff had not been evaluated by the District for the previous 9 years. Yet, once again, the school psychologist, Maria Zaragoza, and his classroom teacher, Ms. Weinberger decided to skip his legally mandated psychoeducational evaluation. As a result, the District and the parents did not obtain important information, which would have likely resulted in Javier being transferred to a general education campus.

“55. Prior to hiring an attorney, Plaintiff’s parents did not know that the District was not conducting legally required evaluations to ensure he was receiving an appropriate education and in the appropriate placement

“D. Triennial Reevaluations

FACT #59. The District’s Policy Bulletin 6639.0, “Three-Year Review Individualized Education Program (IEP) Psycho-Educational Reassessment Requirements,” dated February 1, 2016, provides: “A reassessment of a student with a disability shall be conducted at least once every three years or more frequently, if appropriate, unless the parent/guardian and the [Local Educational Agency] agree, in writing, that a reassessment is unnecessary.” (Trial Ex. 24.) Specifically, “the IEP team must determine at the [second] annual IEP Review whether or not a three-year comprehensive psycho-educational reassessment will be required as part of the upcoming three-year review IEP.” (Id. at 2.) “The IEP team’s decision for reassessment must be documented . . . .” (Id. at 5.) A “threeyear review IEP must be held, regardless of the IEP team’s decision to waive the formal comprehensive psycho-educational assessment.” (Id. at 6.)

FACT #60. The policy states that a comprehensive psychoeducational three-year assessment is required and may not be waived (a) for all students with an eligibility of Emotional Disturbance (ED); (b) for students on the general education curriculum whose previous three-year reassessment had been waived; (c) at the first three-year review IEP following an initial psychoeducational assessment; (d) when a parent/guardian or other member of the IEP team makes a request; (e) when a student is transitioning from early education/preschool programs to elementary programs; (f) if a student is being considered for a change of curriculum from general curriculum to alternative curriculum, or vice versa; (g) when there is new information to suggest that the current eligibility is not appropriate; (h) when there is a significant change in health, behavior, or educational needs such that conditions would warrant a comprehensive reassessment; (i) prior to determining that a child is no longer a child with a disability. (Id. at 4.)

FACT #61. The policy states that it may be appropriate to waive a three-year reassessment if “the student is on alternative curriculum and there is no evidence supporting the need to change the curriculum, eligibility, or program supports.” (Id. at 5.)

FACT #62. J.G.’s parents never waived J.G.’s right to receive a psychoeducational evaluation at Lowman. (M. Flores Testimony 19:25–20:2.)

FACT #63. Dr. Flores testified that a psychoeducational evaluation should be conducted every three years for a student with disabilities because it is an “objective standardized approach” that provides a “baseline” for assessing a child’s current functioning. (C. Flores Testimony 57:10–59:18.) The evaluations help determine whether the student is making progress and whether the interventions are benefiting the student, or if they need to be modified. (Id.)

FACT #64. At the September 30, 2005 IEP meeting, the IEP team selected the option for “formal assessment is needed to re-establish eligibility.” (Trial Ex. 2 at 16.) The team noted, “Javier will have a CTAR by June 15, 2006 for transition to Kindergarten.” (Id.) The June 8, 2006 IEP meeting was marked as a three-year review. (Trial Ex. 4 at 1.)

FACT #65. At the September 24, 2008 IEP meeting, the IEP team selected the option for “formal assessment is needed to re-establish eligibility.” (Trial Ex. 10 at 24.) The June 10, 2009 IEP meeting was marked as a three-year review. (Trial Ex. 12 at 1.) In 2009, J.G. received a Language and Speech Assessment. (Def. Facts ¶ 12; Trial Ex. 11.)

FACT #66. At the June 7, 2011 IEP meeting, in response to the question, “Is formal assessment needed to re-establish eligibility?”, the IEP team selected “No.” (Trial Ex. 14 at 23.) The May 11, 2012 IEP meeting was marked as a three-year review. (Trial Ex. 19 at 1.)

FACT #67. At the March 20, 2014 IEP meeting, in response to the question, “Is formal assessment needed to re-establish eligibility?”, the IEP team selected “No.” (Trial Ex. 22 at 24.) The March 2, 2015 IEP meeting was marked as a three-year review. (Trial Ex. 23 at 1.) FACT #68. At the February 15, 2017 IEP meeting, in response to the question, “Is formal assessment needed to re-establish eligibility?”, the IEP team selected “No.” (Trial Ex. 27.) The February 20, 2018 IEP meeting was marked as a three-year review. (Trial Ex. 33 at 1.) At the February 20, 2018 IEP meeting, in response to the question, “Do the Parent and the District (local educational agency) agree that a reassessment is unnecessary?”, the team selected “Yes.” (Id. at 25.)

FACT #69. Maria Zaragoza was a school psychologist at Lowman from approximately 2012 to 2019. (M. Zaragoza Testimony 135:2; 136:6–7.) During her tenure at Lowman, Ms. Zaragoza never conducted a psychoeducational evaluation of J.G. (Pl. Facts ¶ 104; M. Zaragoza Testimony 152:16–20.) She testified that “there is specific guidance for the IEP team to determine when a psychoeducational reassessment is not necessary.” (M. Zaragoza Testimony 155:12–14.) For example, if “the eligibility has not changed and the student continues to make consistent expected progress,” or there are “no significant health or behavior changes.” (Id. 155:15–18.)

“77. As set forth in detail above, LAUSD employees Sally Weinberger, Lynn Cripe, Anoush Boyajian, and Maria Zaragosa breached their duty of care to not discriminate against Plaintiff because of his disabilities by violating his rights under the ADA and Rehabilitation Act through their unlawful segregation of him at Lowman Special Education throughout high school; and by refusing to conduct any psycho-educational evaluation of Plaintiff over the course of 10 years in violation of California Education Code Section 56381.”

The court also considers the relevant section of the order from Judge Bernal in the Central District action. The request for judicial notice lacks any copy of the pleading reviewed by the District Court, but neither party disputes the common core of relief sought in the form of triennial assessments. The court declines to consider discovery responses as part of the consideration for claim preclusion.

“35. Plaintiff argues that the District violated the ADA and Section 504 by failing conduct a psychoeducational assessment of J.G. once every three years.

36. As discussed above, a plaintiff may establish his ADA or Section 504 claim “by showing there was a violation of one of the regulations implementing [the statutes], if such violation denied the plaintiff meaningful access to a public benefit.” A.G., 815 F.3d at 1204. To support such a claim, the regulation must be an “implementing regulation” within the meaning of Alexander v. Sandoval. Id. “According to Sandoval, regulations can only be enforced through a private right of action contained in a statute when they ‘authoritatively construe’ the statute; regulations that go beyond a construction of the statute’s prohibitions do not fall within the implied private right of action, even if valid.” Mark H. v. Lemahieu, 513 F.3d 922, 935 (9th Cir. 2008). Not every violation of a regulation promulgated pursuant to Title II of the ADA or Section 504 supports a privately enforceable cause of action. T.L. by Layne v. S. Kern Unified Sch. Dist., 2018 WL 1960605, at *4 (E.D. Cal. Apr. 26, 2018).

37. Plaintiff cites regulations that require the District to reevaluate a child with a disability “at least once every 3 years, unless the parent and the public agency agree that a reevaluation is unnecessary.” 34 C.F.R. § 300.303; see also id. § 300.304. Although the Ninth Circuit has indicated that the regulation requiring a school district to provide a FAPE to each child with a disability, 34 C.F.R. § 104.33, is “tightly enough linked” to Section 504 that it “authoritatively construes” that statutory section, no court in this Circuit has held the same for the reevaluation regulation, 34 C.F.R. §§ 300.303–304. See Lemahieu, 513 F.3d at 939; see also P.P. v. Compton Unified Sch. Dist., 135 F. Supp. 3d 1098, 1119 (C.D. Cal. 2015) (holding that 34 C.F.R. §§ 104.33, 104.36, and 104.32, “as invoked in this case,” are a “variety of meaningful access regulation[s]” and therefore privately enforceable).

38. Plaintiff failed to argue at trial that the cited regulations are implementing regulations of either of the statutes under which he brought his claims. As such, the Court cannot hold that the reevaluation regulations, 34 C.F.R. §§ 300.303–304, are privately enforceable under Sandoval.

39. For the foregoing reasons, the Court concludes that the District violated the ADA and Section 504 by unlawfully segregating J.G. at a special education center during the 2018–2019 school year. However, the District did not act with deliberate indifference and Plaintiff is not entitled to recover monetary damages.”

Contrary to the argument of Plaintiff, the District Court made a finding on the merits by not only categorically determining LAUSD “violated the ADA and Section 504 by unlawfully segregating J.G. at a special education center during the 2018–2019 school year” but “did not act with deliberate indifference and Plaintiff is not entitled to recover monetary damages.” In other words, the District Court still concluded a violation occurred, but otherwise declined to allow prosecution of the claim due to the failure to present a legal basis for private enforcement at trial.

The operative complaint apparently relies on a claim under California Education Code Section 56381 and LAUSD policy for triennial assessment (presumably a section based on the Education Code), whereas the District Court case only apparently considered a claim under ADA or a regulatory breach under 34 C.F.R. §§ 300.303–304. LAUSD maintains the regulatory sections constitute a distinction without a difference under claim preclusion doctrine, in that primary right theory effectively encompasses the entire scope of relief. (Johnson v. American Airlines, Inc. (1984) 157 Cal.App.3d 427, 432.)

The primary right theory, and subsequently res judicata preclusion, requires a finding of claim splitting, whereby a Plaintiff “attempts to divide a primary right and enforce it in two suits.” (City of Simi Valley v. Superior Court (2003) 111 Cal.App.4th 1077, 1083.) While the District Court concluded that LAUSD never acted with “deliberate indifference” during the operative period of time thereby precluding the action even if private enforcement remedies were properly raised, it remains unclear from substance of the arguments as to any potential, material differences in the standard between the California and federal regulations. (Ibid. accord Acuna v. Regents of University of California (1997) 56 Cal.App.4th 639, 650.)

Furthermore, contrary to the argument of LAUSD seeking to impose California claim preclusion on a claim solely involving federal laws and regulation, federal claim preclusion law applies to the instant subject matter. (Guerrero v. Department of Corrections & Rehabilitation (2018) 28 Cal.App.5th 1091, 1100-1102.) The court therefore distinguishes the relied upon arguments under California law claim preclusion. (Johnson v. American Airlines, Inc., supra, 157 Cal.App.3d at p. 432.)

Even considering the similarities, however, the court additionally finds the motion insufficiently addresses the issue of factual claim preclusion based on the relief sought (Guerrero v. Department of Corrections & Rehabilitation, supra, 28 Cal.App.5th at pp. 1103-1105.) Nothing in this finding in any way precludes future consideration of this procedural distinction; the court only finds a lack of sufficient argument under the relied upon standard and will not rely on distinguished case law. The motion to strike on claim preclusion is therefore denied without prejudice.

Based on the agreement with Plaintiff, the court GRANTS the motion to strike Paragraph 40, and adds in paragraphs 41 and 42. The court finds the motion to strike Paragraphs 87-89 MOOT, as discussed in the demurrer, and therefore takes this portion of the motion to strike OFF-CALENDAR. The court DENIES the motion to strike the remainder of the challenged allegations based on the claim preclusion/res judicata argument. LAUSD to answer the third amended complaint within 10 days of this order.

LAUSD to give notice.