CROSS-DEFENDANTS’ DEMURRER TO, AND MOTION TO STRIKE PORTIONS OF, FIRST AMENDED CROSS-COMPLAINT
on the Petition must be no less than 15 days and no more than 30 days after the Petition is filed. (Prob. C. §8003(a).) For this reason, if no publication of the hearing was made, the Court is without jurisdiction to hear the Petition and cannot continue the hearing to permit Petitioner to cure the defect.
CIVIL LAW & MOTION CALENDAR – Hon. Cynthia P. Smith, Dept. A (Historic Courthouse) at 8:30 a.m.
25 Executive, LLC v. Julie Nguyen 25CV002614
CROSS-DEFENDANTS’ DEMURRER TO, AND MOTION TO STRIKE PORTIONS OF, FIRST AMENDED CROSS-COMPLAINT
TENTATIVE RULING: The matter is CONTINUED to August 28, 2026, at 8:30 a.m. in Dept. A. Nguyen is ordered to submit additional briefing and Cross-Defendants are granted leave to file a sur-reply as set forth below. The Case Management Conference set for August 4, 2026 is CONTINUED to October 20, 2026 at 8:30 am in Dept. A.
Cross-Defendants 25 Executive, LLC, Jeremy Sill, Jesse Van Coutren; Michael Holcomb; and Strong & Hayden (“Cross-Defendants”) demur, pursuant to Code of Civil Procedure sections 430.10, subdivisions (e) and (f), 2 to the First Amended Cross-Complaint (“FACC”) of Julie Nguyen (“Nguyen”). Cross-Defendants further move, pursuant to Code of Civil Procedure sections 435 and 436, subdivision (a), for an order striking the following portions of the FACC: (a) Paragraphs 30, 42, and 47, and Prayer Paragraph 2; (b) Paragraphs 30, 42, and 47, and Prayer Paragraph 2; (c) Prayer Paragraph 7, insofar as it seeks attorney’s fees; and (d) Cross-Defendants further move to strike all allegations and requests for relief seeking recovery for injuries.
Rather than opposing the Demurrer and Motion to Strike, on July 22, 2026, Nguyen filed a purported Second Amended Cross-Complaint (“SACC”).
“A party may amend its pleading once without leave of the court at any time ... 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 by the parties.” (§ 472, subd. (a) (Section 472).) That section, however, cannot be relied upon by a party to further amend an already amended pleading. (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 575 [“under section 472, the right to amend a cross-complaint as a matter of right is...limited to the original version of the cross-complaint”.])
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Nguyen filed a First Amended Cross-Complaint (“FACC”) on April 23, 2026. Pursuant to the holding in Hedwell, Section 472 does not provide Nguyen the right to further amend the operative cross-complaint without leave of court. Because Nguyen did not obtain the Court’s 2 All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.
leave to file the SACC, it was not filed in conformity with the law and is subject to being struck from the record on the Court’s own motion. (See § 436.)
However, the Court notes the possibility, if not likelihood, that the SACC contains amendments aimed at addressing the deficiencies urged by Cross-Defendants through the Demurrer and Motion to Strike. While Cross-Defendants, through the Reply, urge the Court to strike the SACC, they do not suggest, let alone substantiate with reference to the FACC and SACC, that the amendments in the SACC are unrelated to the issues raised on the present Demurrer and Motion to Strike. Moreover, based on the nature of the Demurrer and Motion to Strike and the allegations of the FACC, if the Court were to sustain the Demurrer or grant the Motion, it would do so with leave to amend. Striking the SACC, only to grant Nguyen leave to refile it, would be a waste of judicial, as well as party, resources.
That said, it is neither Cross-Defendants’ nor the Court’s responsibility to compare the SACC with the FACC to determine the nature of the amendments. The Court therefore orders Nguyen to serve and file, no later than August 12, 2026: 1) A Memorandum that “[s]tate[s] what allegations in the previous pleading are . . . deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and . . . [s]tate[s] what allegations are . . . added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.” (Cal Rules of Court, rule 3.1324(a).) and 2) A Declaration specifying: a. The effect of the amendment; b. Why the amendment is necessary and proper; and, c. Whether and to what extent the amendment addresses issues raised in Cross- Defendants’ Demurrer and Motion to Strike. (Id. at rule 3.1324(b).)
If the SACC reflects a good faith effort by Nguyen to address the deficiencies urged by Cross-Defendants through the Demurrer and Motion, even if Cross-Defendants believe that it does not adequately address those deficiencies, the Court will be inclined to permit it to remain the operative cross-complaint, grant Cross-Defendants additional time to respond thereto, and find the present Demurrer and Motion MOOT. However, if the amendments to the SACC are not limited to attempts to cure deficiencies asserted through the Demurrer and Motion, the Court will be inclined to strike it and consider the Demurrer and Motion.
Cross-Defendants are granted leave to serve and file, no later than August 19, 2026, a Sur-Reply of no more than 12 pages. If Cross-Defendants consent to the filing of the SACC, the Sur-Reply shall so state. If Cross-Defendants continue to oppose the filing of the SACC, the Sur- Reply shall explain Cross-Defendants’ continuing opposition in light of the foregoing.
Tifnique Garrison v. Store Storage 26CV000996
DEFENDANT STORE MANAGEMENT, LLC’S DEMURRER TO COMPLAINT
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