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Case No.:  1-12-CV-226964

DATE:  January 21, 2014

TIME:  9:00 a.m.

DEPT.: 3

Plaintiff/Cross-Defendant’s Request for Judicial Notice of two documents 1) The original Cross-Complaint in this matter filed July 15, 2013, and; 2) This Court’s September 25, 2013 Order on the demurrer to the original Cross-Complaint is GRANTED pursuant to Evid. Code §452(d).  Only the Court’s prior order is noticed as to the truth of its contents.  

As an initial matter Plaintiff/Cross-Defendant is correct that Cross-Complainant has added new claims without prior leave of court. Accordingly the Court on its own motion pursuant to CCP §436(b) strikes the Amended Cross-Complaint’s newly added 2nd cause of action (Slander of Title), 3rd cause of action (Action to Cancel Instrument), and 5th cause of Action (Common Count).  The Court also strikes the requests for punitive damages associated with the 2nd and 3rd causes of action listed in the Prayer.  Cross-Complainant lost its right to freely amend once under CCP §472 after a ruling was made on the demurrer to the original cross-complaint.  When a demurrer is sustained with leave to amend, the leave must be construed as permission to the pleader to amend the causes of action to which the demurrer has been sustained, not add entirely new causes of action.  Patrick v. Alacer Corp. (2008) 167 Cal App 4th 995, 1015.  To raise claims entirely unrelated to those originally alleged requires either a new lawsuit or a noticed motion for leave to amend.  Absent prior leave of court an amended complaint raising new and different causes of action is subject to a motion to strike.  Leave to amend to add these claims, or any other new claims, by any means other than a properly noticed motion for leave to amend or a stipulation between the parties is DENIED.

Plaintiff/Cross-Defendant’s demurrer to the 2nd, 3rd and 5th causes of action is deemed MOOT in light of the above ruling.

Plaintiff/Cross-Defendant’s demurrer to the Amended Cross-Complaint’s 4th cause of action for “Unjust Enrichment by Economic Duress, “ formerly the 3rd cause of action in the original Cross-Complaint, on the ground that it fails to state sufficient facts is SUSTAINED. It is now apparent that this claim is solely based on Plaintiff/Cross-Defendant’s alleged threat to file suit to seek to enforce its interpretation of the lease between the parties.  See Amended Cross-Complaint at 43.  As the Court previously explained in the prior order, “[t]he doctrine of ‘economic duress’ can apply when one party has done a wrongful act which is sufficiently coercive to cause a reasonably prudent person, faced with no reasonable alternative, to agree to an unfavorable contract.  [Citation.]  The party subjected to the coercive act, and having no reasonable alternative, can then plead ‘economic duress’ to avoid the contract. . . . When a party pleads economic duress, that party must have had no ‘reasonable alternative’ to the action it now seeks to avoid (generally, agreeing to a contract).  If a reasonable alternative was available, and there hence was no compelling necessity to submit to the coercive demands, economic duress cannot be established.  Whether the party asserting economic duress had a reasonable alternative is determined by examining whether a reasonably prudent person would follow the alternative course, or whether a reasonably prudent person might submit.  [Citation.]  Clearly this inquiry is a factual one, rarely if ever susceptible to determination on demurrer.”  

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