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Robert Schwob vs County of Santa Barbara California et al

Case Number

23CV02404

Case Type

Civil Law & Motion

Hearing Date / Time

Wed, 12/20/2023 - 10:00

Nature of Proceedings

(2) Demurrers and Motion to Strike

Tentative Ruling

Plaintiffs [“Schwobs”] are represented by James Scafide

Defendants Jeff and Susan Crosby [“Crosbys”] are represented by Robert Forouzandeh

Defendant County of Santa Barbara [“County”] is represented by Christine M. Monroe

Issues

Defendants Crosbys demurrer to the First Amended Verified Complaint for Damages and Injunctive Relief filed by Schwobs against the Crosbys.

County’s demurrer and motion to Strike the First Amended Verified Complaint for Damages and Injunctive Relief filed by Schwobs.

Rulings

Since there is no opposition, the demurrers and motion to strike are granted.

The Court believes there will be no opposition against the filing of the 2AC; please meet and confirm. If there is no opposition the Court will grant the request to file the 2AC attached to the Plaintiffs’ motion set for 1/10/24 and take the motion for 1/10/24 off calendar.

Analysis

On 11/13/23 County demurred to Schwobs First Amended Verified Petition for Mandamus; Complaint for Damages and Injunctive Relief; set for hearing on 12/20/23.

On 11/13/23 County filed a motion to strike the following from Schwobs First Amended Petition and Complaint as against the County: Paragraph 7 of the Prayer, appearing on page 19 of the Petition, as to all counts: “For punitive damages in a sum to be shown at trial.”  Set for hearing on 12/20/23.

On 11/28/23 Crosby demurred to the First Amended Verified Complaint for Damages and Injunctive Relief filed by Schwobs as against the Crosbys only; set for a hearing on 12/20/23.

On 12/11/23 County filed a “Reply” that said the County requests that the unopposed demurrer and motion to strike be sustained; Schwobs’ deadline to oppose the demurrer or the motion to strike or file an amended pleading was December 7, 2023; Code of Civil Procedure, §1005(b), (c) provides filing and service to ensure next day delivery must be made at least nine court days before the hearing] and § 472 provides a pleading may be amended, without stipulation, if it is “filed and served no later than the date for filing an opposition to the demurrer or motion to strike;” no such filings appear on the Court’s docket and none have been received by the County. As the Schwobs have not opposed the demurrer and have already been given an opportunity to amend to properly allege its theories of liability, the Court should sustain the demurrer without leave to amend as to these causes of action.

On 12/13/23 Schwobs filed a motion for leave to file a 2AC; set for hearing on 1/10/24. A copy of the proposed Second Amended Complaint is attached as Exhibit One to the motion.

On 12/13/23 Crosbys filed a notice of no opposition to Defendants' Demurrer to the First Amended Verified Complaint filed by Schwobs as against the Crosbys.

On 12/18/23 Schwobs filed Points and Authorities in support of their motion for leave to file a 2AC; set for 1/10/24.

The Courts Conclusions

Since there is no opposition the demurrers and motion to strike they should be granted.

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