Judge: Upinder S. Kalra, Case: 22STCV14357, Date: 2022-12-19 Tentative Ruling
Case Number: 22STCV14357 Hearing Date: December 19, 2022 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: December
19, 2022
CASE NAME: Eliseo Barragan v. Deutsche Bank
National Trust
CASE NO.: 22STCV14357
DEMURRER
WITH MOTION TO STRIKE
MOVING PARTY: Defendant Deutsche Bank National Trust
Company
RESPONDING PARTY(S): None as of December 14, 2022
REQUESTED RELIEF:
1. An
order sustaining the demurrer as to the entire complaint
TENTATIVE RULING:
1. Demurrer
is SUSTAINED, as to the entire complaint, without leave to amend.
2. Motion
to Strike is MOOT
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On April 29, 2022, Plaintiff Eliseo Barragan (“Plaintiff”)
filed a complaint against Defendant Deutsche Bank National Trust Company, as
Trustee, in Trust for Registered Holders of Long Beach Mortgage Loan Trust
2006-WL2, Asset-Backed Certificates, Series 2006-WL2, a banking business entity
(“Defendant.”) The complaint alleged six causes of action as it pertains to the
foreclosure of the Subject Property. Plaintiff purchased the subject property
in 1995, and was transferred to Defendant. In 2018, Plaintiff fell behind on
mortgage payments, no notice was served upon the Plaintiff and subsequently
Defendant conducted a foreclosure sale on September 4, 2018.
On September 14, 2022, Defendant filed the current Demurrer
with Motion to Strike. No Opposition has been filed as of December 14, 2022.
LEGAL STANDARD
Demurrer
A demurrer for sufficiency tests whether
the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When
considering demurrers, courts read the allegations liberally and in
context. In a demurrer proceeding, the defects must be apparent on the
face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) “A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters. …. The only issue involved in a demurrer hearing is whether
the complaint, as it stands, unconnected with extraneous matters, states a
cause of action.” (Hahn 147
Cal.App.4th at 747.)
Motion to Strike
The court may, upon a 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(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. (Id., § 436(b).)
The grounds for moving to strike must appear on the face of the pleading or by
way of judicial notice. (Id. § 437.) “When
the defect which justifies striking a complaint is capable of cure, the court
should allow leave to amend.” (Vaccaro v.
Kaiman (1998) 63 Cal.App.4th 761, 768.)
Meet and Confer:
Prior to filing a demurrer, the
demurring party is required to satisfy their meet and confer obligations
pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied
their meet and confer obligation by submitting a declaration pursuant to Code
of Civ. Proc. §430.41(a)(2) & (3). The Declaration of
Steven Dailey indicates that on September 9, 2022, counsels spoke via telephone
about the demurrer and motion to strike. The parties were unable to resolve the
issues.
Judicial Notice:
The Court may take judicial notice of the
existence of the records, but not the truth of matters asserted in such
records. (Sosinsky v. Grant (1992) 6
Cal.App.4th 1548, 1565). As a result, although the court may take judicial
notice that the documents exists, the Court may not take judicial notice of the
truth of the facts in the documents.
Additionally,
Evidence Code only allows the Court to take judicial notice of certain types of
documents. The court may take judicial notice of “official acts of the legislative,
executive, and judicial departments of the United States and of any state of
the United States,” “[r]ecords of (1) any court of this state or (2) any court
of record of the United States or of any state of the United States,” and
“[f]acts and propositions that are not reasonably subject to dispute and are
capable of immediate and accurate determination by resort to sources of
reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and
(h).) The Evidence Code does not allow the Court to take judicial notice of
discovery responses or parts of cases, such as depositions.
Defendant
requests that the Court take judicial notice of the following documents:
1.
Deed
of Trust recorded October 5, 2005 in Official Records Recorder’s Office, Los
Angeles County as Document Number 20052398202
2.
Loan
Modification Agreement recorded May 28, 2009 in Official Records Recorder’s
Office, Los Angeles County as Document Number 20090794655
3.
Assignment
of Deed of Trust recorded March 25, 2011 in Official Records Recorder’s Office,
Los Angeles County as Document Number 20110448911
4.
Notice
of Default and Election to Sell Under Deed of Trust recorded March 25, 2011 in
Official Records Recorder’s Office, Los Angeles County as Document Number
20110448913
5.
Substitution
of Trustee recorded March 25, 2011 in Official Records Recorder’s Office, Los
Angeles County as Document Number 20110448912
6.
Notice
of Trustee’s Sale recorded June 27, 2011 in Official Records Recorder’s Office,
Los Angeles County as Document Number 20110863755
7.
Notice
of Rescission of Declaration of Default and Demand for Sale and of Notice of
Breach and Election to Cause Sale recorded July 25, 2011 in Official Records
Recorder’s Office, Los Angeles County as Document Number 20110987054
8.
Notice
of Default and Election to Sell Under Deed of Trust recorded June 1, 2012 in
Official Records Recorder’s Office, Los Angeles County as Document Number
20120819621
9.
Grant
Deed recorded November 25, 2013 in Official Records Recorder’s Office, Los
Angeles County as Document Number 20131676984
10.
Substitution
of Trustee recorded February 28, 2014 in Official Records Recorder’s Office,
Los Angeles County as Document Number 20140208444
11.
Notice
of Trustee’s Sale recorded March 6, 2014 in Official Records Recorder’s Office,
Los Angeles County as Document Number 20140228553
12.
Trustee’s
Deed Upon Sale recorded October 1, 2014 in Official Records Recorder’s Office,
Los Angeles County as Document Number 20141038259
13.
Notice
of Rescission of Trustee’s Deed Upon Sale recorded March 27, 2015 in Official
Records Recorder’s Office, Los Angeles County as Document Number 20150331073
14.
Substitution
of Trustee recorded June 23, 2016 in Official Records Recorder’s Office, Los
Angeles County as Document Number 20160724808
15.
Notice
of Trustee’s Sale recorded June 28, 2016 in Official Records Recorder’s Office,
Los Angeles County as Document Number 20160741816
16.
Notice
of Trustee’s Sale recorded June 23, 2017 in Official Records Recorder’s Office,
Los Angeles County as Document Number 20170698116
17.
Notice
of Trustee’s Sale recorded December 28, 2017 in Official Records Recorder’s
Office, Los Angeles County as Document Number 20171507770
18.
Trustee’s
Deed Upon Sale recorded September 14, 2018 in Official Records Recorder’s
Office, Los Angeles County as Document Number 20180945973
19.
Grant
Deed recorded August 15, 2019 in Official Records Recorder’s Office, Los
Angeles County as Document Number 20190819376
20.
Docket
regarding In re Barragan, United States Bankruptcy Court, Central District of
California, case no. 2:14-bk-29876-SK
21.
Petition
filed October 21, 2014 regarding In re Barragan, United States Bankruptcy
Court, Central District of California, case no. 2:14-bk-29876-SK
22.
Docket
regarding Barragan, et al. v. Select Portfolio Servicing, Inc., et al., United
States District Court, Central District of California, case no.
2:15-cv-02614-DDPFFM
23.
Notice
of Removal, with Complaint filed April 8, 2015 regarding Barragan, et al. v.
Select Portfolio Servicing, Inc., et al., United States District Court, Central
District of California, case no. 2:15-cv-02614-DDP-FFM
24.
Plaintiff’s
first amended complaint filed June 28, 2015 regarding Barragan, et al. v.
Select Portfolio Servicing, Inc., et al., United States District Court, Central
District of California, case no. 2:15-cv-02614-DDP-FFM
25.
Report
and Recommendation filed July 15, 2016 regarding Barragan, et al. v. Select
Portfolio Servicing, Inc., et al., United States District Court, Central
District of California, case no. 2:15-cv-02614-DDP-FFM
26.
Order
Accepting Findings entered September 30, 2016 regarding Barragan, et al. v.
Select Portfolio Servicing, Inc., et al., United States District Court, Central
District of California, case no. 2:15-cv-02614-DDP-FFM
27.
“27”
Judgment entered September 30, 2016 regarding Barragan, et al. v. Select
Portfolio Servicing, Inc., et al., United States District Court, Central
District of California, case no. 2:15-cv-02614-DDP-FFM
28.
28”
Docket regarding In re Barragan, United States Bankruptcy Court, Central
District of California, case no. 2:16-bk-19118-VZ
29.
Petition and Schedules filed July 8, 2016
regarding In re Barragan, United States Bankruptcy Court, Central District of
California, No. 2:16-bk-19118-VZ
30.
Order
Granting Motion for Relief from the Automatic Stay entered March 31, 2017
regarding In re Barragan, United States Bankruptcy Court, Central District of
California, case no. 2:16-bk-19118-VZ
31.
Docket
regarding In re Barragan, United States Bankruptcy Court, Central District of
California, case no. 2:17-bk-18642-NB
32.
Docket
regarding Eliseo Barragan v. Select Portfolio Servicing, Inc., et al., Los
Angeles Superior Court case no. BC700704
33.
Complaint
filed April 3, 2018 regarding Eliseo Barragan v. Select Portfolio Servicing,
Inc., et al., Los Angeles Superior Court case no. BC700704
34.
First
Amended Complaint filed May 23, 2018 regarding Eliseo Barragan v. Select
Portfolio Servicing, Inc., et al., Los Angeles Superior Court case no. BC700704
35.
Court’s
Minute Order regarding Demurrer of SPS to the First Amended Complaint entered
August 1, 2018 regarding Eliseo Barragan v. Select Portfolio Servicing, Inc.,
et al., Los Angeles Superior Court case no. BC700704
36.
Judgment
of Dismissal entered August 9, 2018 regarding Eliseo Barragan v. Select
Portfolio Servicing, Inc., et al., Los Angeles Superior Court case no. BC700704
37.
Docket
regarding Eliseo Barragan v. Deutsche Bank National Trust Company, et al., Los
Angeles Superior Court case no. STCV03340
38.
Complaint
filed January 31, 2019 regarding Eliseo Barragan v. Deutsche Bank National
Trust Company, et al., Los Angeles Superior Court case no. STCV03340
39.
Order
regarding Defendant Hollyvale Rental Holdings, LLC’s Demurrer to Complaint
entered August 5, 2019 regarding Eliseo Barragan v. Deutsche Bank National Trust
Company, et al., Los Angeles Superior Court case no. STCV03340
40.
Order
Granting Defendant Hollyvale Rental Holdings, LLC’s Ex Parte Application for
Dismissal without Prejudice entered September 11, 2019 regarding Eliseo
Barragan v. Deutsche Bank National Trust Company, et al., Los Angeles Superior
Court case no. STCV03340
41.
Order
Dismissing Case without Prejudice entered October 7, 2020 regarding Eliseo
Barragan v. Deutsche Bank National Trust Company, et al., Los Angeles Superior
Court case no. STCV03340
The above documents are court documents. The Defendant’s
request for judicial notice is GRANTED, pursuant to Evidence Code § 452(c),
(d), and (h).
ANALYSIS:
Demurrer:
Defendant demurs to
the entire complaint on various grounds, including, but not limited to, that
the complaint fails to name an indispensable party, the causes of action are
barred by res judicata, the causes of action are barred by the statute of
limitations, as well as that the causes of action all fail to state sufficient
facts to constitute a cause of action.
Indispensable Party:
Defendant
argues that Plaintiff failed to join indispensable parties: the current owner
2240 N. Beachwood Dr. LLC, and Eliseo Vargas Gusman, with whom Plaintiff shared
title to the property. Under CCP § 430.10, a party may object, “by demurrer…to
the pleading on any one or more of the following grounds: (d) There is a defect
or misjoinder of parties.”
Res Judicata
Defendant argues that res judicata
prevents this current action as there were two previous matters, one federal
and one state, that concerned the same loan that is at issue with the current
matter. (Motion 7: 22-28; RJN 24.)
Res judicata prevents relitigation of the same
cause of action in a second suit between the same parties or parties
in privity with them. (Consumer
Advocacy Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th
675, 683.) Res judicata requires three elements be met: “(1) the issues
decided in the prior adjudication are identical with those presented in the
later action; 2) there was a final judgment on the merits in the prior action;
and 3) the party against whom the plea is raised was a party or was
in privity with a party to the prior adjudication.” (Id. at 686.)
a)
Same
Issues – Primary Right
Here, the
Defendant argues that the Plaintiff is attempting to relitigate the same
primary rights that were litigated in two prior lawsuits. The Court in Hong Sang Market discussed the primary
rights theory. There, the Court stated,
“The plaintiff's primary right is the right to be free from a
particular injury, regardless of the legal theory on which liability for the
injury is based…A primary right is distinct from the legal theory on which
liability is premised or the remedies that may be sought. Thus, while a primary
right may support multiple theories of liability or various forms of relief, it
gives rise to a single, indivisible cause of action for purposes of applying
claim preclusion principles.”
(Hong Sang Market, Inc. v. Peng
(2018) 20 Cal.App.5th 474, 490 [229 Cal.Rptr.3d 99, 110, 20 Cal.App.5th 474,
490],
Here, the
Defendant asserts that the same causes of action are being alleged against the
Defendant as were done in the Second Lawsuit. The other two lawsuits concern
the primary right: to be free from the foreclosure. (Motion 8: 7-9.)
b)
Final
judgment on the merits
Defendant
argues that the previous matters, Barragan
I and Barragan II, “resulted in
judgments adverse to Plaintiff.” (Motion 8: 6-7, RJN Ex. 25-27, 35-36.) Thus,
there was a final judgment on the merits.
c)
Privity
exists
Here, the Defendant asserts that
privity exists. While Defendant was not a party to Barragan II, it is in privity with the loan servicer. (Motion 8,
fn. 1.) As the Court in Barnes v.
Homeward Residential, Inc., stated:
Privity exists if “there is
substantial identity between parties, that is, when there is sufficient
commonality of interest.” Tahoe–Sierra, 322 F.3d at 1081 (quotations omitted).
Thus, Courts have found privity “where the interests of the nonparty and party
are so closely aligned as to be virtually representative.” Id. at 1082
(quotations omitted). The Court finds such commonality of interests exists
here. Plaintiff is suing defendants in connection with their attempt to
foreclose on the Property. Homeward is the servicer of the mortgage on the
Property, MERS and DBNTC are the former and current holders of the beneficial
interest of the DOT securing the mortgage, and PDS is the substitute trustee on
the DOT.
(Barnes v. Homeward
Residential, Inc. (N.D. Cal., Sept. 17, 2013, No. 13-3227 SC) 2013 WL
5217393, at *3, vacated and remanded (9th Cir. 2016) 635 Fed.Appx. 373.)
“Privity’ as used in the context of
res judicata or collateral estoppel, does not embrace relationships between
persons or entities, but rather it deals with a person's relationship to the
subject matter of the litigation.” (Cal
Sierra Development, Inc. v. George Reed, Inc. (2017) 14 Cal.App.5th 663,
674).
The Court finds that the doctrine
of res judicata applies. First, the primary right is the same as has been
previously raised by Plaintiff: the issue of the foreclosure sale on September
4, 2018. Second, there were various final judgments on the merits; the matter
was dismissed on in 2018 and 2019. (RJN 36 and 40.) Lastly, there is privity of
parties, as there was a “commonality of interest.”
Thus, Res Judicata bars the
current complaint. Demurrer as to the Entire complaint is SUSTAINED.
Time Barred:
Defendant also argues that the
claims are time barred as the matter involves the September 4, 2018, trustee’s
sale under the three-year statute of limitations in CCP § 338. (Motion 8:
13-22, citing Engstrom v. Kallins (1996)
49 Cal. App. 4th 773, 781-83, for the contention that wrongful foreclosure,
slander of title, negligence, and declaratory relief are covered under CCP §
338.)
The issue of statue of limitations
will be discussed below, as it pertains to the cause of action for wrongful
foreclosure.
Causes of Action:
1.
Breach
of Contract
Defendant argues that this cause of action
fails for four main reasons: (1) the breach cannot be based on a statutory
violation, (2) the complaint does not allege any breached contractual
provision, (3) the complaint does not allege a breach by Defendant, and (4) the
complaint does not allege that Plaintiff performance the conditions of the
agreement.
The elements for a breach of contract
cause of action are: (1) existence of contract; (2) plaintiff’s performance or
excuse for nonperformance; (3) defendant’s breach (or anticipatory breach); and
(4) resulting damage. (Wall Street
Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.)
A review of the complaint indicates that
Plaintiff has failed establish a breach of contract cause of action. First,
there are no indications about which specific provision of the Dodd-Frank Act
Defendant allegedly breached, or that Defendant breached any contract.
Additionally, Plaintiff states that he fell behind on mortgage payments, but
then states he was able to perform all acts required pursuant to the Note and
Deed of Trustee. Nowhere in the complaint does Plaintiff indicate that he
sufficiently made payments required under the loan.
Therefore, the Demurrer as to the First
Cause of Action is SUSTAINED.
2.
Wrongful
Foreclosure
Defendant argues that
this cause of action fails because it is time barred, Plaintiff fails to allege
tender, Plaintiff failed to plead with particularity which section of the
multiple statutes alleged were violated, and Plaintiff has failed to allege
substantial prejudice.
“The elements of a
wrongful foreclosure cause of action are: “ ‘(1) [T]he trustee or mortgagee
caused an illegal, fraudulent, or willfully oppressive sale of real property
pursuant to a power of sale in a mortgage or deed of trust; (2) the party
attacking the sale (usually but not always the trustor or mortgagor) was
prejudiced or harmed; and (3) in cases where the trustor or mortgagor
challenges the sale, the trustor or mortgagor tendered the amount of the
secured indebtedness or was excused from tendering.” (Citrus El Dorado, LLC v. Chicago Title Co. (2019) 32 Cal.App.5th
943, 948).
A review of the
complaint indicates that the current cause of action for wrongful disclosure is
time barred. As seen in Engstrom, CCP
§ 338 applies to wrongful foreclosure matters. (Engstrom, supra, 49 Cal. App. 4th at 781-83.) Moreover, the
Complaint also fails to allege that any amount was “tendered in the amount of
the secured indebtedness or was excused from tendering.”
Therefore, the Demurrer as to
the Second Cause of Action is SUSTAINED
3.
Violation
of the Consumer Protection Act
Defendant argues that this cause of
action fails because it does not plead with the required specificity when
pleading a statutory cause of action. (Motion 13: 21-23, citing Fisher Fisher v. San Pedro Peninsula Hospital
(1989) 214 Cal.App.3d 590, 604.) Specifically, Plaintiff’s complaint does not
allege which portion of any statute Defendant violated.
The Dodd-Frank Wall Street Reform
and Consumer Protection Act was created “to promote the financial stability of
the United States by improving accountability and transparency in the financial
system, to end “too big to fail”, to protect the American taxpayer by ending
bailouts, to protect consumers from abusive financial services practices, and
for other purposes.” (DODD–FRANK WALL STREET REFORM AND CONSUMER PROTECTION
ACT, PL 111-203, July 21, 2010, 124 Stat 1376.)
A review of
the complaint indicates that Plaintiff has failed to allege a cause of action
for Violation of the Consumer Protection Act. The complaint contains conclusory
allegations, such as “Defendants violated each and everyone of these Acts.”
There are no facts alleged that indicate Defendant violated a statute, and more
specifically, which statute.
Demurrer
as to the Third Cause of Action is SUSTAINED.
4.
Quiet
Title
Defendant argues that this cause of
action fails because the complaint is not verified as required under CCP §
761.020, Plaintiff cannot state a basis for superior title, any outstanding
debts must be paid prior to such an action, and Plaintiff did not allege all
adverse claims to the property.
To establish a quiet title action
under CCP § 761.020, the complaint must include:
“(a) a description of the property
that is the subject of the action, (b) the title of the plaintiff as to which a
determination under this chapter is sought and the basis of the title, (c) the
adverse claims to the title of the plaintiff against which a determination is
sought, (d) the date as of which the determination is sought, and (e) a prayer
for the determination of the title of the plaintiff against the adverse
claims.”
Further,
In an
action to quiet title, the complaint should allege,¿inter alia,¿the interest of the plaintiff in the property at the
time the action is commenced. [Citation] If plaintiff owns the property in fee,
a general allegation of ownership of the described property is sufficient.
[Citation] However, a general allegation of ownership is treated as a
conclusion if the detailed facts upon which the claim of ownership is
predicated are also alleged, and in such case, the specific facts will control
rather than the general allegation in determining whether the complaint states
sufficient facts to constitute a cause of action. [Citations] Actually, in such
circumstances only one cause of action is stated. [Citation] Accordingly, if
the specifically pleaded facts affirmatively reveal the absence of an essential
element in a plaintiff's claim of title, no cause of action is stated.¿
(Stafford v.
Ballinger (1962) 199 Cal. App. 2d 289, 292.)
A review of
the Complaint indicates that Plaintiff has failed to allege a cause of action
for quiet title. First, the complaint is not verified, as required in CCP §
761.020, which states in the first line “The complaint shall be verified and
shall include all of the following.” Additionally, a cause of action for quiet
title requires a plaintiff to state the “adverse claims against which
determination is sought.” Here, there are no facts pleaded or stated that there
are adverse claims.
Therefore,
the Demurrer as to the Fourth Cause of Action is SUSTAINED.
5.
Cancellation
of Deed
Defendant argues that this cause of action fails because the
complaint does not state a “basis upon which to cancel the Trustee’s Deed Upon
Sale.”
Under Civil Code section 3412, ‘[a] written instrument, in
respect to which there is a reasonable apprehension that if left outstanding it
may cause serious injury to a person against whom it is void or voidable, may,
upon his application, be so adjudged, and ordered to be delivered up or
canceled.’ To prevail on a claim to cancel an instrument, a plaintiff must
prove (1) the instrument is void or voidable due to, for example, fraud; and
(2) there is a reasonable apprehension of serious injury including pecuniary
loss or the prejudicial alteration of one’s position.” (U.S. Bank National Assn. v. Naifeh (2016)
1 Cal.App.5th 767, 778.)
A review of
the complaint indicates that the Plaintiff has failed to allege any facts to
support the remedy of cancellation. The cause of action fails to state facts
indicating that the instrument is void, such as by fraud. The complaint merely
states that Defendant did not have the right to foreclose, which was completed
via Trustee’s Sale, and requests the Deed conveyed in September 2018 be
cancelled and deemed null and void. (Complaint ¶¶ 46, 48, 50.)
Therefore, the Demurrer as to
the Fifth Cause of Action is SUSTAINED
6.
Declaratory
Relief
Defendant argues that the cause of
action for declaratory relief fails because Plaintiff did not allege an actual
controversy and cannot identify a “substantive claim” against Defendant.
“To qualify for declaratory relief
under section 1060, plaintiffs were required to show their action (as refined
on appeal) presented two essential elements: “(1) a proper subject of
declaratory relief, and (2) an actual controversy involving justiciable
questions relating to the rights or obligations of a party.” (Lee v. Silveira (2016) 6 Cal.App.5th
527, 546) ““Declaratory relief operates prospectively to declare future rights,
rather than to redress past wrongs.” (County
of San Diego v. State of California (2008) 164 Cal.App.4th 580, 607).
A review of the complaint
indicates that the cause of action for declaratory relief fails. While the
complaint states that there is an actual controversy between the parties, the
issue in the complaint concerns a redress past wrong, specifically that
Defendant “did not have the right to proceed with the September 4, 2018,
foreclosure Trustee’s Sale against the Property…” (Complaint ¶ 52.) Declaratory
relief is only available for a present
controversy. None is alleged.
Therefore, the Demurrer as to
the Sixth Cause of Action is SUSTAINED.
Motion to Strike:
Because the entire demurrer was SUSTAINED,
the Motion to Strike is MOOT.
CONCLUSION:
For the foregoing reasons, the
Court decides the pending motion as follows:
Leave to
amend should be liberally granted because access to justice entitles litigant reasonable
opportunities to cure defects on the complaint, especially if it is probable
that the defects can be cured. No such reasonable probability exists here.
Moreover, access to justice does not mean indefinite filings. In light of the
fact that this is at least the third alliteration of a battle that Plaintiff
has fought and lost in two separate actions, enough is enough. The Demurrer of
the entire complaint is SUSTAINED without leave to amend.
The Motion to Strike is MOOT.
Pursuant to CCP § 581d, this written order of dismissal
constitutes a judgment and shall be effective for all purposes. The Clerk shall
note this judgment in the register of actions in this case.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: December
19, 2022 ________________________________ Upinder
S. Kalra
Judge
of the Superior Court