2016-00195759-CU-DF

Nabil Samaan vs. Mark Rains

Nature of Proceeding: Motion to Strike Portions of the 2nd Amended Complaint

Filed By: McDermott, Amanda L.

Defendants Mark Rains and County of Sacramento’s (collectively, “Defendants”) motion to strike portions of Plaintiff’s Second Amended Complaint (“SAC”) is DENIED.

Defendants move to strike the sixth cause of action in its entirety, paragraphs 33, 34, 41, and 42 of the second cause of action, paragraphs 57 of the third cause of action, paragraph 72 of the fifth cause of action, and paragraph 80 of the sixth cause of action.

Paragraphs 33, 34, 41, and 42 of the Second Cause of Action

As to the allegations in the second cause of action, this motion is MOOT as the Court has sustained Defendants’ demurrer to the second cause of action without leave to amend.

Sixth Cause of Action

Defendants contend the sixth cause of action was previously dismissed in its entirety with prejudice pursuant to the parties’ stipulation and Plaintiff was not granted leave to amend the First Amended Complaint (“FAC”) to add or revive this cause of action.

In opposition, Plaintiff contends the stipulation only applied to federal claims and Plaintiff did not agree to dismiss any state claims for violation of his rights under the California Constitution. The Court agrees. The stipulation specifically states: “Pursuant to this Stipulation, Plaintiff’s Sixth Cause of action for ‘Violation of Constitutional First and Fourteenth Amendment Rights,’ along with any other claims that may be construed to be federal question claims over which this court has original jurisdiction under 27 U.S.C. § 1331, and any other federal claims against Defendant Mark Rains or the County of Sacramento, are dismissed with prejudice.” (RJN, Exh. 3 at ¶ 10.) Other references in the stipulation also indicate the parties only agreed upon the dismissal of Plaintiff’s federal claims. (RJN, Exh. 3 at ¶¶ 6-8.) Further, the Request for Dismissal specifically states “ONLY Federal Causes of Action for violation of 1st and 14th Amendment of US Constitution.” (RJN, Exh. 2.)

Defendants’ argument that Plaintiff never received leave to amend following the demurrer to the FAC is irrelevant. The sixth cause of action was included in Plaintiff’s FAC, but Defendants did not demur to it. Therefore, the Court’s ruling on the demurrer to the FAC necessarily did not and would not have addressed anything regarding the sixth cause of action or whether leave to amend was or was not granted.

Accordingly, the motion to strike the entire sixth cause of action is DENIED.

Paragraphs 57 and 72

As to paragraphs 57 and 72 of the SAC, Defendants contend these allegations are irrelevant as Plaintiff does not assert any causes of action against the County premised on direct liability, yet these paragraphs contain allegations that the County has failed to supervise Defendant Rains or ratified his conduct.

In opposition, Plaintiff contends the SAC is still based on the same underlying facts, including that Mr. Rains is a County employee, and he is permitted to assert alternative theories of liability against Defendant County. Indeed, a plaintiff may plead inconsistent causes of action in separate counts of a single complaint. (Steiner v. Rowley (1950) 35 Cal.2d 713, 719.) It is proper practice for a plaintiff to ask for inconsistent remedies in a single complaint. (Tanforan v. Tanforan (1916) 173 Cal. 270, 273.) These paragraphs allege an alternative theory of vicarious liability against the County, which is permissible.

Accordingly, the motion to strike these paragraphs is DENIED.

Paragraph 80

Although Defendants’ notice indicates they seek to strike paragraph 80 of the sixth cause of action, they set forth no authorities or argument in support thereof. Accordingly, the motion to strike paragraph 80 is DENIED.

Conclusion

The motion to strike is DENIED.