Case Name: Michelle Wahl v. Stanford University Hospital, et al.
Case No..: 17CV318001

This is an action for retaliation and wrongful termination brought by Plaintiff Michelle Wahl (“Plaintiff”) against Defendant Stanford Health Care (“Defendant”). Currently before the Court is Defendant’s motion to strike portions of the Second Amended Complaint filed by Plaintiff on August 20, 2018 which added three additional causes of action without leave of Court.

As an initial matter the Court notes that Defendant has failed to comply with Code of Civil Procedure (“CCP”) § 435.5, effective January 1, 2018, which clearly requires a party moving to strike all or a portion of a pleading to file a declaration with such a motion stating their compliance with the meet and confer efforts required by the statute. As a failure to comply with the statute is not by itself a basis for denying the motion (see CCP § 435.5(a)(4)), the Court will proceed to rule on the motion.

Pursuant to CCP § 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or 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. In ruling on a motion to strike, the court reads the complaint as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, citing Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

Plaintiff’s initial complaint, filed on October 6, 2017 while Plaintiff was self-represented, stated two causes of action: 1) Unlawful Retaliation and 2) Wrongful Termination. Defendant filed a demurrer and a motion to strike on March 29, 2018 directed at the original complaint which was set for hearing on July 31, 2018. On June 14, 2018 Attorney Stephen Ilg filed a notice of appearance indicating that he was now representing Plaintiff. Plaintiff’s Counsel failed to file any opposition to the demurrer or motion to strike, but instead waited until 2:34 p.m. on July 30, 2018—the day before the hearing—to file a purported First Amended Complaint still alleging the same two causes of action as the original complaint targeted by the demurrer and motion. Contrary to Plaintiff Counsel’s argument in the opposition to the current motion (see Opp. at p. 2:3) this purported amendment was not “properly filed.” CCP §472(a) states in pertinent part that “[a] party may amend its pleading once without leave of court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation of the parties.” (Court’s emphasis.) There is no evidence of any stipulation allowing the filing of the purported first amended complaint the day before the July 31, 2018 hearing.

Any timely amended complaint thus had to be filed by July 18, 2018 (nine court days before the hearing date) in order to be valid. The purported first amended complaint was untimely under CCP §472(a) and therefore invalid. This is consistent with the language of the July 31, 2018 minute order of the Court (Hon. Zayner) stating that “Defendant Stanford Health Care’s unopposed demurrer and motion to strike portions of Plaintiff’s Complaint is GRANTED with 20 days’ leave to amend.” (Court’s emphasis.) If the Court was even aware of the late filed attempted amendment it was not considered in ruling on the demurrer and motion to strike targeting the original complaint, and the minute order reflects that neither side appeared at the July 31, 2018 hearing.

Contrary to Plaintiff Counsel’s further argument in the opposition to the current motion, the July 31, 2018 order sustaining the initial demurrer with leave to amend did not authorize the filing of an amended complaint (first or second) with additional causes of action. When a demurrer is sustained with leave to amend, the leave must be construed as permission to the pleader to amend the causes of action to which the demurrer has been sustained, not to add entirely new causes of action. (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) To raise claims entirely unrelated to those originally alleged requires either a new lawsuit or a noticed motion for leave to amend. Absent prior leave of court, an amended complaint raising new and different causes of action may be subject to a motion to strike. (See Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023 [“Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. The plaintiff may not amend to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.”])

Accordingly, Defendant’s motion to strike is GRANTED as to the SAC’s third, fourth and fifth causes of action as these three claims were added without leave of court as they were not authorized by the Court’s July 31, 2018 order. Leave to amend is DENIED as the defect (failure to conform to the Court’s July 31, 2018 order) cannot be cured by amendment, nor can it be cured through a motion for relief brought under CCP §473. “An attorney’s mistake of law is charged to the client and is not a ground for relief when the ‘mistake’ is ‘simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law.’” (Weil & Brown, Cal. Prac. Guide: Civil Procedure Before Trial (Rutter Group 2018) ¶5:313, p. 5-93–5-94 citing Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206, among other decisions.)