2012-00544102
1.DEMURRER TO FIRST AMENDED COMPLAINT
2.MOTION TO STRIKE COMPLAINT
3.CASE MANAGEMENT CONFERENCE

Motion to Strike

Plaintiffs filed their First Amended Complaint on 1/27/14. Defendant GEIGER & MERRITT LLP moves to strike the FAC on the ground that it was untimely filed more than 30 days after the Fourth District Court of Appeal mail-served its remittitur on 11/13/13. (CCP 472b.) This argument fails because related statutes expressly provide that after ruling on a demurrer, the trial court has discretion to extend the time for filing an amended pleading. (Cf. CCP 471.5, 472a (b), (c), (d); CRC 3.1320 (g).)

“When a demurrer is sustained, the Court may grant leave to amend the pleading upon any terms as may be just and shall fix the time within which the amendment or amended pleading shall be filed.” (CCP 472a (c).)

Although CCP 472b does not contain this same express language, it is implicitly understood that the trial court retains discretion to enlarge the time for filing. Thus, the 30-day limit of CCP 472b is a default deadline that applies only if the court fails to specify a longer deadline.

Similarly, CRC 3.1320 (g) provides that: “Following a ruling on a demurrer, unless otherwise ordered, leave to answer or amend within 10 days is deemed granted.” (CRC 3.1320 (g).) Here again, the 10-day deadline is a default rule that only applies if the Court fails to specify a longer deadline.

On remand, the Fourth District Court of Appeal failed to specify any deadline within which the trial court was required to rule. Thus, implicitly, the trial court was required to rule within a reasonable time, which it did.

On 1/8/14, the trial court issued an order sustaining the demurrer with leave to amend and giving Plaintiffs 20 days’ leave within which to file their FAC. On that same date — 1/8/14 — the clerk mail-served the minute order. So Plaintiffs had until 1/28/14 to file their FAC. They timely filed it on 1/27/14.

Because the trial court expressly enlarged the time for filing Plaintiffs’ amended pleading, the 30-day default period set by CCP 472b does not apply. Defendants’ interpretation of the statute would require a finding that neither the trial court nor the Court of Appeal has the power to enlarge the time for filing an amended pleading. But this interpretation contradicts the plain language of CCP 471.5, 472a, and CRC 3.1320 (g).

The motion to strike is denied.

The Court GRANTS Defendant’s request to take judicial notice that Exs. 1-8 were documents filed in various court proceedings. But the court may not take judicial notice of the truth of any facts asserted therein that are reasonably subject to dispute.

“A court may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language, assuming there is no genuine dispute regarding the document’s authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Fontenot v. Wells Fargo Bank N.A. (2011) 198 Cal.App.4th 256, 265.) But a court may not take judicial notice of the truth of factual representations, made in the recorded document, that are reasonably open to dispute. (Ibid.; See also Evid. Code 451 (e), (f); Evid. Code 452 (g), (h).)

The trial court DENIES the request to take judicial notice of Ex. 9, which purports to be a copy of the parties’ settlement agreement from the 2011 legal fees suit in Orange County. Plaintiffs have not attached a copy of that document to their FAC nor have Plaintiffs alleged the terms thereof. Plaintiffs are not suing for breach of the settlement agreement so they are not required to plead the terms of the contract.

Whether Ex. 9 is a true and correct copy of the parties’ settlement agreement is a fact that is not judicially noticeable because it is reasonably subject to dispute. Furthermore, the terms of the agreement are not alleged on the face of the FAC and need not be alleged at the demurrer stage. So the court may not take judicial notice thereof. Defendant may only present such evidence on a motion for summary judgment or at trial.

In its 9/16/13 opinion at page 9, the Fourth District Court of Appeal expressly held that the settlement agreement herein was not a matter of which this court of the Court of Appeal could take judicial notice. (Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 861-862.)

The Court OVERRULES Defendant’s demurrer on all of the grounds raised in Defendant’s memorandum of points and authorities. The Court finds that Plaintiffs have adequately pled facts, which if proven to be true at trial, would establish that Defendant law firm signed a contract expressly permitting Plaintiffs to bring a separate legal malpractice action, thus constituting a knowing, intentional, and express waiver of Defendant’s right to raise the compulsory cross-complaint rule as an affirmative defense.

In Opposition, the law firm argues that the compulsory cross-complaint rule is an affirmative defense and that it expressly reserved the right to raise any and all affirmative defenses at trial. (CCP 426.30; Chao Fu Inc. v. Chen (2012) 206 Cal.App.4th 48, 56.) But in the absence of any evidence as to the terms of the agreement, the trial court cannot rule on the substance of the affirmative defense.

Defendant shall file its answer or responsive pleading within 10 calendar days of the clerk’s service of the minute order.

Defendant shall serve notice of these rulings.