Case Number:?EC067284????Hearing Date:?February 09, 2018????Dept:?A
Rafkhod v City of Los Angeles?
MOTION FOR JUDGMENT ON THE PLEADINGS
Item:????????????????8
Case:???????????????EC067284
Date:???????????????2/9/18
MP:?????????????????Defendant, City of Los Angeles
RP:??????????????????Plaintiff, Rafkhod
ALLEGATIONS IN COMPLAINT:
????????????The Plaintiff operates a marijuana business.??The Defendant has enacted business regulations that violate the Adult Use of Marijuana Act that was adopted by California?s voters as Proposition 64.??The Plaintiff seeks a declaration of its right to operate a commercial marijuana business in light of Proposition 64 and injunctive relief.
CAUSES OF ACTION IN COMPLAINT:
1) Declaratory Relief
2) Injunctive Relief
RELIEF REQUESTED:
Judgment on the pleadings or strike Complaint
DISCUSSION:
????????????This hearing concerns the Defendant?s motion for a judgment on the pleadings or to strike the pleadings.??A motion for a judgment on the pleadings has the purpose and effect of a general demurrer and is filed after the time to file a demurrer has expired.?Smiley v. Citibank (S.D.), N.A.?(1995) 11 Cal. 4th 138, 145-146.??Accordingly, just as on a demurrer, the Court examines the allegations in order to determine whether they contain the essential facts necessary to plead a valid cause of action and accepts as true all material facts alleged therein.??Id.
CCP section 438(c)(B) provides that the grounds for a judgment on the pleadings in favor of the defendant are the following:
1) The court has no jurisdiction of the subject of the cause of action alleged in the complaint.
2) The complaint does not state facts sufficient to constitute a cause of action against that defendant.
Further, CCP section 438(d) provides that the grounds for the judgment on the pleading must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.
After a judgment on the pleadings is granted, the same standards apply in granting leave to amend as for demurrers and leave is routinely granted.??People v. $20,000 U.S. Currency?(1991) 234 Cal.App.3d 682, 692.??See e.g.,?Virginia G. v. ABC Unified Sch. Dist.(1993) 15 Cal. App. 4th 1848, 1852 (holding that when a motion for judgment on the pleadings is granted, denial of leave to amend constitutes an abuse of discretion if the pleading does not show on its face that it is incapable of amendment).
- Plaintiff?s Lack of Counsel
????????????The Defendant provides evidence that the Plaintiff has no licensed attorney.??The Defendant?s attorney, Arlene Hoang, states that the Plaintiff?s counsel, James DeAguilera, advised Ms. Hoang that Mr. DeAguilera was not eligible to practice law in the State of California.??Ms. Hoang states that she reviewed the State Bar website and discovered that Mr. DeAguilera became ineligible on October 15, 2017.
However, this does not concern the sufficiency of the pleadings, i.e., it does not show that the pleadings lack sufficient facts or that the Court does not have subject matter jurisdiction over the causes of action in the pleadings.??As a result, it is not grounds for a judgment on the pleadings.
????????????Instead, it may be grounds to strike the pleadings.??Under California law, a corporation may not appear in Court without a licensed attorney.??Merco Construction Engineers, Inc. v. Municipal Court?(1978) 21 Cal.3d 724, 731.??When a corporation seeks to appear without counsel, it is the duty of the Trial Court to advise the representative of the corporation of the necessity to be represented by a licensed lawyer.??Van Gundy v. Camelot Resorts, Inc. (1983) 152 Cal. App. 3d Supp. 29, 31-32; see also?Gamet v. Blanchard(2001) 91 Cal. App. 4th 1276, 1284 n5 (corporation must have notice that it cannot represent itself before dismissal).
A review the Court file reveals no evidence that the Court has advised the Plaintiff, Rafkhod, that it must be represented by a licensed attorney and that its Complaint will be stricken unless Rafkhod is represented by a licensed attorney.??Accordingly, the Court will set an OSC regarding striking the Complaint of Rafkhod because it is not represented by a licensed attorney in order to satisfy the Court’s duty to advise Rafkhod of the necessity to be represented by a licensed attorney.??Then, if Rafkhod does not obtain legal counsel by the OSC, the Court may strike the Complaint.
Therefore, the Court will deny the request to strike the Complaint but will set an OSC regarding striking the Complaint of Rafkhod for the failure to appear through a licensed attorney.
- Another Action Pending
????????????The Defendant then argues that there are grounds for a judgment on the pleadings because there is another action pending between the parties.??The pending action was filed on September 14, 2017 and, in its Complaint, the Plaintiff seeks declaratory relief regarding its right to operate a marijuana business.??The Plaintiff then filed a second action on October 13, 2017 on EC067470 to seek the same relief (see copy of Complaint in EC067470 in exhibit 4 to moving papers).
????????????However, this is not grounds for a judgment on the pleadings.??As noted above, under CCP section 438, a judgment on the pleadings may be granted when the Court has no jurisdiction of the subject of the cause of action alleged in the complaint or when the Complaint does not state facts sufficient to constitute a cause of action against that defendant.
Instead, the ground of another action pending may be raised in a demurrer under CCP section 430.10(c).??This is also known as a plea in abatement and in determining whether the causes of action are the same, the rule is that such a plea may be maintained only?where a judgment in the first action would be a complete bar to the second action.??Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal. App. 3d 781, 787-788.??The rule of exclusive jurisdiction is that when two or more tribunals in this state have concurrent jurisdiction, the tribunal first assuming jurisdiction retains it to the exclusion of all other tribunals in which the action might have been initiated.??Stearns v. Los Angeles City School Dist. (1966) 244 Cal. App. 2d 696, 708.??Thereafter another tribunal, although it might originally have taken jurisdiction, may be restrained by prohibition if it attempts to proceed.??Id.??This rule avoids unseemly conflict between Courts that might arise if they were free to make contradictory decisions or awards at the same time or relating to the same controversy.??Id.??Further, it protects litigants from the expense and harassment of multiple litigation.??Id.
However, the demurrer on this ground is made in the second action because the first action continues and the second action is stayed pending the outcome of the first one.??The pending action, EC067284, was filed first.??As a result, even if the Defendant had raised this in a demurrer, the demurrer would be overruled.
????????????Therefore, there are no grounds for a judgment on the pleadings or to strike the pleadings in the pending action based on the fact that the Plaintiff filed a second action to seek the same relief.
- Second Cause of Action forInjunctive Relief
????????????The Defendant argues that this is not a cause of action.??Under California law, injunctive relief is a remedy and not in itself a cause of action.??Shell Oil Co. v. Richter?(1942) 52 Cal.App.2d 164, 168.??As a result, the Court will grant the motion for a judgment on the pleadings with regards to this cause of action.??Since this is not a cause of action, the Court will not grant leave to amend.
RULING:
- Set an OSC regarding striking the Complaint of Rafkhod for the failure to appear through a licensed attorney.
- Grant motion for judgment on the pleadings with regards to second cause of action without leave to amend.
- Deny all other relief.