Case Number: BC485428    Hearing Date: April 22, 2014    Dept: 34

Moving Party: Defendant Los Angeles Community College District (“LACCD”)

Resp. Party: Complainant Igor Daza (“Daza”)

LACCD’s motion to strike the entire third amended cross-complaint is GRANTED. Because the Court strikes the entire third amended cross-complaint, the demurrer is MOOT.

The Court takes judicial notice of the items requested by LACCD. (See Evid. Code, § 452(c), (d), (h).) The court notes however, that judicial notice is not needed for documents that are already part of the Court’s file in the case.

BACKGROUND:

Plaintiff commenced this action on 5/25/12. After the Court sustained a demurrer to the complaint, plaintiff filed a first amended complaint on 11/9/12 against defendants for: (1) negligence; (2) injuries to employee within the scope of employment; (3) negligent supervision; (4) negligent hiring/retention; (5) IIED; (6) sexual battery; (7) battery; (8) assault; (9) sexual harassment; (10) gender violence; (11) false imprisonment; (12) negligent sexual abuse; and (13) Civil Code section 51.7. Plaintiff was a student at a college within defendant LACCD’s district and alleges that she was sexually assaulted by defendant Igor Daza, a guidance counselor and advisor employed by LACCD.

Defendant Daza had filed a cross-complaint against LACCD. On 5/24/13, the Court sustained LACCD’s demurrer to the second amended cross-complaint, with leave to amend as to the first cause of action and without leave to amend as to the second through fourth causes of action. The Court ordered Daza to file an amended complaint by 7/31/13. Daza did not file a third amended cross-complaint (“TACC”) until 3/6/14. The third amended complaint asserts causes of action for statutory defense, statutory indemnity, and petition for writ of mandate.

ANALYSIS:

LACCD moves to strike the entire TACC on the ground that Daza failed to file it within the time allowed in the Court’s 5/24/13 minute order. “[F]ailure to file an amended complaint within the time allowed by the court [after a demurrer is sustained] subject[s] any subsequently filed pleading to a motion to strike, either by defendants or on the court’s own motion.” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.)

LACCD’s demurrer to the second amended cross-complaint (“SACC”) was set for hearing on 5/24/13. Daza filed an opposition to the demurrer on 5/13/13 and LACCD filed a reply on 5/16/13. The demurrer was heard by the Court, the Hon. Elia Weinbach presiding, on 5/24/13. The Court’s minute order from that hearing is silent as to which parties were present. (See Minute Order, 5/24/13.) However, the Minute Order does state that “Matter is called for hearing and argued.” The implication is that at least one party was present at the hearing. The Court issued a ruling on the demurrer, which was signed and filed on 5/24/13. In the ruling, the Court sustained the demurrer to the entire SACC, and granted leave to amend as to the first cause of action (for declaratory relief and statutory indemnity) only. (See Ruling, 5/24/13.) The Court ordered: “Amended complaint to be filed and served on or before July 31, 2013.” (Ibid.) Daza did not file the TACC until 3/6/14 – over seven months after the time allowed in the Court’s ruling.

In the opposition, Daza argues that the 5/24/13 ruling was erroneous because the hearing had been continued, and that Daza was not served with the Court’s ruling. This argument is improper for a motion to strike because it relies on extrinsic evidence. (See Code Civ. Proc., § 437; Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2013) ¶ 7:169.) There is nothing in the Court’s record which shows that the hearing on the demurrer to the SACC had been continued or that the Court was ever informed of an intent by the parties to continue the hearing. Further, even if the court were to consider the extrinsic evidence proffered by Daza, it appears that Daza knew of the Ruling on the Demurrer by July 11, 2013 – which still would have given him ample time to file a Third Amended Cross-Complaint. (See Opp., Exh. B.) Daza has not sought relief from the 5/24/13 order and did not seek leave to file the TACC after 7/31/13.

Accordingly, LACCD’s motion to strike is GRANTED.