Samuels v. Select Portfolio Servicing, Inc., et al.
30-2015-00779563
Defendants? Motion for Judgment on the Pleadings to Plaintiff?s Second Amended Complaint (?SAC?) is denied. Plaintiff?s second and fourth causes of action were previously found by this court to state viable causes of action.? The court overruled the demurrer as to those causes of action. ?The filing of the SAC does not re-open these two causes of action for Defendants to once again challenge them when there has been no material change to the causes of action. A Motion for Judgment on the Pleadings under Code of Civil Procedure section 438, may not be granted if a demurrer on the same ground was previously overruled unless there is an intervening change in the law. (Yancey v. Superior Court (Neal) (1994) 28 Cal.App.4th 558, 562.) The second attempt to attack these causes of action amount to an improper and untimely motion for reconsideration under Code of Civil Procedure section 1008 of the court?s August 10, 2016 ruling on the demurrer. (Bennett v. Suncloud (1997) 56 Cal.App.4th 91, 96-97.)
This court previously ruled that the first and third causes of action stated sufficient facts to support that Defendants had violated the relevant statutes in question. The demurrer was sustained with leave to amend as these two causes of action, however, on the ground that Plaintiff had failed to allege relief of an injunction.? Instead, Plaintiff sought monetary damages, which are not recoverable under the statutes. Plaintiff has now remedied this defect in the first and third causes of action and requests injunction as the remedy for each cause of action.? Accordingly, the Motion for Judgment on the Pleadings is denied.
Plaintiff shall give notice of ruling.