Judge: Thomas Falls, Case: 20STCV19630, Date: 2022-08-16 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Dept. R at 909-802-1117 before 8:30 the morning of the hearing.

Case Number: 20STCV19630    Hearing Date: August 16, 2022    Dept: R

PLAINTIFF’S MOTION FOR RELIEF FROM INACCURATE FACTUAL ALLEGATIONS PLED IN FIRST AMENDED COMPLAINT

            Responding Party: Unopposed

Tentative Ruling

PLAINTIFF’S MOTION FOR RELIEF FROM INACCURATE FACTUAL ALLEGATIONS PLED IN FIRST AMENDED COMPLAINT is DENIED.

Background

This case arises from an alleged sexual battery. Plaintiff Victoria Figueroa (“Plaintiff”), by and through her guardian ad litem, Frances Valenzuela, alleges the following against Defendants CUSD, Brett O’Connor, and Andrea Deligio (collectively, “Defendants”): during freshman high school orientation, Defendant Juan Enriquez inappropriately touched Plaintiff’s inner thigh three times.

On May 22, 2020, Plaintiff filed suit against Defendants and Juan Enriquez for:

1.      Negligent Supervision of School Premises (against CUSD and Doe 1)

2.      Negligent Supervision of School Premises (against CUSD, Brett O’Connor, Andrea Deligio, and Does 2-100)

3.      Negligent Supervision and Training of Employees (CUSD, Doe 1, Brett O’Connor, Andrea Deligio, and Does 2-100)

4.      Violation of Cal. Constitution (CUSD, Doe 1, Brett O’Connor, Andrea Deligio, and Does 2-100)

5.      Sexual Battery (against Juan Enriquez)

On November 5, 2021, Judge Michael E. Whitaker sustained Defendants’ demurrer with 20 days leave to amend.[1]

On November 24, 2021, Plaintiff filed a First Amended Complaint (“FAC”).

On December 23, 2021, Defendants filed their second and instant Demurrer with a Motion to Strike, which the court sustained with leave to amend.

On May 16, 2022, Plaintiff filed the instant ‘Motion for Relief from Inaccurate Factual Allegations Pled in the First Amended Complaint’ (“Motion”).

On June 23, 2022, Plaintiff filed its Second Amended Complaint (“SAC”).

On July 25, 2022, Defendants filed their Demurrer to the SAC. (The hearing for the demurrer is scheduled for 09/02/22).

On August 2, 2022, Defendants filed their Opposition to the instant Motion.

Legal Standard

Plaintiff brings forth the instant motion pursuant to CCP section 473, subdivision (b).

CCP § 473(b) allows a court to vacate a prior order upon a showing that the order was entered due to a party’s mistake, inadvertence, surprise, or excusable neglect. Additionally, the motion “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” The terms mistake, inadvertence, surprise, and excusable neglect which warrant relief under Code of Civil Procedure § 473(b) are defined as follows:  

Mistake is not a ground for relief under section 473, subdivision (b), when ‘the court finds that the “mistake” is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law ....’ [Citation] Further, ‘[t]he term “surprise,” as used in section 473, refers to “some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” [Citation] Finally, as for inadvertence or neglect, ‘[t]o warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.’ [Citation] 

(Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229-230.) 

Discussion

The court is uncertain as to the purpose of this motion. While the court’s previous tentative addressed sham pleading, during oral arguments (which Defendants failed to appear), the court was persuaded by Plaintiff’s Counsel that he made an inadvertent mistake by omitting a material fact. The demurrer was sustained with leave to amend. As there is no judgment, dismissal, order, or proceeding to seek relief from, the motion is denied.

Conclusion