Case Number: EC063130 Hearing Date: February 13, 2015 Dept: NCD
DEMURRERS (2)
MOTION TO STRIKE
[CCP §430.10 et. seq.]

TENTATIVE RULING (2/13/15)
#6
EC 063130
PARK v. AGUILAR

Defendant Andrew Rifkin’s Demurrer to Plaintiff’s Complaint
Demurrer of Defendant Dignity Health dba Northridge Hospital Medical Center (erroneously sued herein as Center for Assault Treatment Services (CATS)) to Plaintiff’s Complaint
Motion to Strike Portions of Plaintiff’s Complaint by Demurrer of Defendant Dignity Health dba Northridge Hospital Medical Center (erroneously sued herein as Center for Assault Treatment Services (CATS))

(NOTE: The Court expects that a First Amended Complaint will be filed prior to the hearing on these motions. The following tentative and brief analysis is provided in the event a First Amended Complaint is not timely filed).

TENTATIVE:
[NO OPPOSITION]
Defendant Andrew Rifkin’s UNOPPOSED Request for Judicial Notice is GRANTED.

Defendant Andrew Rifkin’s demurrer will be taken up at the motion hearing if a FAC has not been filed.

Demurrer and motion to strike of Defendant Dignity Health. To the extent the demurrer and motion to strike are brought as Dignity Health, erroneously sued as Center for Assault Treatment Services, the demurrer and motion are MOOT. Defendant Center for Assault Treatment Services was dismissed from this action on January 30, 2015. To the extent the demurrer and motion to strike are brought by defendant Dignity Health, the court notes that an Amendment substituting this party as the true name for Doe 3 was filed on January 29, 2014, after the filing of the demurrer. The court notes that this renders the pleading difficult to evaluate as to the moving defendant, as there are no specific charging allegations against it.
The demurrer is accordingly SUSTAINED.
Ten days leave to amend, if possible.

BACKGROUND:
CAUSES OF ACTION: from Complaint (body of pleading, not caption)
1) Violation of Federal Civil Rights
Count One—Warrantless Seizure of Child and Unlawful Detention
Count Two –Perjury, Fabrication of Evidence, Suppression of Exculpatory Evidence
2) Monell-Related Claims

SUMMARY OF FACTS:
Plaintiff Chan Park brings this action against various defendants alleging that her children were wrongfully removed from her custody after she complained to authorities that their father, from whom plaintiff was then estranged, was sexually abusing them.

ANALYSIS:
Defendant Rifkin is alleged to have been plaintiff’s attorney, appointed by the court. [Para. 37]. Defendant argues that he is a private attorney retained by plaintiff, so could not have been operating under color of state law. The pleading alleges that this party was appointed by the court, and conspired with and aided and abetted the other defendants. [Paras. 20, 21, 58, 59, 61].

Defendant Rifkin also argues that all of plaintiff’s causes of action are barred by the one year statute of limitations applying to legal malpractice actions. Defendant requests that the court take judicial notice of the Substitution of Attorney filed in the other action. [Ex. A]. This shows that substitution was agreed to on March 12, 2013. The pleading here was filed on November 17, 2014. However, the pleading alleges that Rifkin made misrepresentations that prevented her from going to trial, informing her a hearing was not the trial, refused to subpoena witnesses or present evidence, withheld exculpatory evidence, and that “Plaintiff only found out months later,” the true circumstances with respect to the legal proceedings. [Para. 66].

As to defendant Dignity Health, the demurrer and motion to strike are effectively moot as the motions are brought under the assumption this party is being erroneously sued as Center for Assault Treatment Services, when this party was dismissed by plaintiff after the filing of the motions. Plaintiff has also since filed an amendment substituting Dignity Health as the true name of Doe 3. This slightly changes the allegations against this party, and results in the circumstance that no clear charging allegations are made against this party by name. The court will provide plaintiff with an opportunity to amend the pleading to make specific allegations against this party, if possible.