Preview
1 XAVIER BECERRA Exempt Under Gov. Code§ 6103
Attorney General of California
2 DARRELL W. SPENCE
Supervising Deputy Attorney General E-FILED
3 LISA A. TILLMAN 3/12/2021 10:27 AM
Deputy Attorney General Superior Court of California
4 State Bar No. 126424 County of Fresno
1300 I Street, Suite 125 By: E Alvarado, Deputy
5 P.O. Box 944255
Sacramento, CA 94244-2550
6 Telephone: (916) 210-7910
Fax: (916) 324-5567
7 E-mail: Lisa.Tillman@doj.ca.gov
Attorneys for Respondent-Defendant
8 Department of State Hospitals
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF FRESNO
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MANSE SULLIVAN, CaseNo. l8CECG041I8
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Petitioner, RESPONDENT'S EX PARTE
15 APPLICATION AND [PROPOSED]
v. ORDER TO PERMIT RESPONDENT TO
16 FILE A SUPPLEMENTAL
MEMORANDUM OF POINTS AND
17 CALIFORNIA DEPARTMENT OF STATE AUTHORITIES IN RESPONSE TO
HOSPITALS, TENTATIVE RULING RE MOTION
18 FOR JUDGMENT ON THE
Respondent. PLEADINGS
19
Date: March 18, 2021
20 Time: 3:30 p.m.
Dept: 402
21 Judge: The Honorable D. Tyler Tharpe
Trial Date: None Assigned
22 Action Filed: November 1, 2018
23 INTRODUCTION
24 Respondent California Department of State Hospitals (Department) respectfully requests
25 that this Court permit the filing of the attached supplemental memorandum of points and
26 authorities in response to the Court's tentative decision on the motion for judgment on the
27 pleadings in this matter. This supplemental memorandum responds to the Court's concern that
28 this motion for judgment on the pleadings is precluded by Code of Civil Procedure section
DSH's Ex Parte App. Re Supplemental Brief on Tentative Decision on Mot. Jdmt. Pleadings (18CECG04118)
430.41, subdivision (b ), and its bar on the assertion of a demurrer to an amended pleading raising
2 grounds that could have been previously raised in a challenge to the earlier pleading. Because
3 petitioner's belated opposition brief was not received by respondent's counsel until February 17,
4 2021, the Department did not have the opportunity to fully brief this issue before the tentative
5 ruling issued on February 16 2021. This brief will enhance judicial economy by providing, in
6 writing, the statutory and decisional law supporting the Department' s position on this issue. The
7 Department does not oppose providing petitioner an opportunity to respond with a supplemental
8 brief, and to a continuance of the hearing to enable such briefing by petitioner. Because judicial
9 economy will be served by permitting this supplemental briefing; hence, this ex parte application
10 should be granted.
11 RELEVANT PROCEDURAL BACKGROUND
12 On November l , 2018, Sullivan filed this petition for a writ of mandamus and complaint for
13 declaratory relief and damages. (Ct. Docket.)
14 On November 4, 2019, the Department filed a demurrer. (Ct. Docket) This Court
15 overruled the demurrer. (Ibid.) The Department then filed an answer to the petition-complaint.
16 (Ibid.)
17 The Department filed a motion for judgment on the pleadings on January 19, 202 1, with a
18 scheduled hearing date of February 18, 2021. (Ct. Docket.) Sullivan filed belated opposition on
19 February 16, 2021. (Ibid.) The Department's counsel did not receive the belated opposition until
20 February 17, 2021. (Deel. Tillman,~ 2.)
21 On February 18, 2021 , this Court issued a first corrected tentative ruling to deny the motion
22 for judgment on the pleadings. (Exh. L, Corrected Tentative Ruling.) The tentative ruling states,
23 in pertinent part, that "a defendant will not be able to raise any issues in a motion for j udgment on
24 the pleadings that could have been, but were not, raised in a prior demurrer. (See Code Civ.
25 Proc.,§ 430.41 , subd. (b).)" (Ibid.) The Department's supplemental memorandum of points and
26 authorities, with request for judicial notice, declaration of Lisa Tillman, and exhibits, in response
27 to this tentative ruling is attached as Exhibit 1.
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DSH's Ex Parte App. Re Supplemental Brief on Tentative Decision on Mot. Jdmt. Pleadings ( I 8CECG04 I I 8)
1 MEET AND CONFER
2 On March 5, 2021 , the Department's counsel sent a letter to petitioner-plaintiff Sullivan and
3 infonned him of the intent to bring this ex parte application. (Deel. Tillman, ,r 3.) The same
4 letter was hand-delivered to petitioner-plaintiff on March 9, 2021. (Ibid)
5 LEGAL STANDARD
6 Courts have "inherent authority to control their own calendars and dockets." ( Walker v.
7 Superior Court (1991) 53 Cal.3d 257, 267: see also Rutherford v. Owens-Illinois, Inc . (1997) 16
8 Cal.4th 953, 967 [noting that "courts have fundamental inherent equity, supervisory, and
9 administrative powers, as well as inherent power to control litigation before them" ).)
10 LEGAL ARGUMENT
11 This Court should grant the Department's request to file the attached short supplemental
12 brief addressing whether this motion for judgment on the pleadings is precluded by the limitation
13 stated in Code of Civil Procedure section 430.14, subdivision (b). Petitioner raised this issue in
14 his belated opposition brief, leaving respondent insufficient time to provide a reply before the
15 tentative was posted. This brief will enhance judicial economy by providing, in writing, the
16 statutory and decisional law supporting the Department's position on this issue. The Department
17 does not oppose providing petitioner an opportunity to respond with a supplemental brief, and to
18 a continuance of the hearing to enable such supplemental briefing by petitioner.
19 II
20 II
21 II
22 II
23 II
24 II
25 II
26 II
27 II
28 II
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DSH' s Ex Parte App. Re Supplemental Briefon Tentative Decision on Mot. Jdmt. Pleadings (18CECG041 18)
1 CONCLUSION
2 On all the grounds stated, this Court should grant this ex parte application to file the
3 attached supplemental brief.
4
Dated: March 9, 2021 Respectfully Submitted,
5
XAVIER BECERRA
6 Attorney General of California
DARRELL W. SPENCE
7 Supervising Deputy Attorney General
8
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10 LISA A. TILLMAN
Deputy Attorney General
11 Attorneys for Defendant
Department ofState Hospitals
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DSH' s Ex Parte App. Re Supplemental Brief on Tentative Decision on Mot. Jdlnt. Pleadings (18CECG04 1 l 8)
DECLARATION OF SERVICE BY OVERNIGHT COURIER
Case Name: Sullivan v. DSH
No.: 18CECG04118
I declare:
I am employed in the Office of the Attorney General, which is the office of a member of the
California State Bar, at which member's direction this service is made. I am 18 years of age or
older and not a party to this matter; my business address is: 1300 I Street, Suite 125, P.O. Box
944255, Sacramento, CA 94244-2550.
On March 12, 2021, I served the below listed documents:
1. Respondent's Ex Parte Application and [Proposed] Order to Permit Respondent to File a
Supplemental Memorandum of Points and Authorities in Response to Tentative Ruling re
Motion for Judgment on the Pleadings;
2. Declaration of Lisa Tillman in Support of Respondent's Ex Parte Application and
[Proposed] Order to Permit Respondent to File a Supplemental Memorandum of Points and
Authorities in Response to Tentative Ruling re Motion for Judgment on the Pleadings
by placing a true copy thereof enclosed in a sealed envelope with the (GoldenState], addressed
as follows:
Manse Sullivan
C-000425-9
Coalinga State Hospital
24511 West Jayne Avenue
Coalinga, CA 93210-5003
I declare under penalty of perjury under the laws of the State of California and the United States
of America the foregoing is true and correct and that this declaration was executed on March 12,
2021, at Sacramento, California.
J. Hutcherson
Declarant
SA20l9 102n 8
34910304 docxJ4910304 DOCX
Preview
1 XAVIER BECERRA Exempt Under Gov. Code§ 6103 Attorney General of California 2 DARRELL W. SPENCE Supervising Deputy Attorney General E-FILED 3 LISA A. TILLMAN 3/12/2021 10:27 AM Deputy Attorney General Superior Court of California 4 State Bar No. 126424 County of Fresno 1300 I Street, Suite 125 By: E Alvarado, Deputy 5 P.O. Box 944255 Sacramento, CA 94244-2550 6 Telephone: (916) 210-7910 Fax: (916) 324-5567 7 E-mail: Lisa.Tillman@doj.ca.gov Attorneys for Respondent-Defendant 8 Department of State Hospitals 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF FRESNO 11 12 13 MANSE SULLIVAN, CaseNo. l8CECG041I8 14 Petitioner, RESPONDENT'S EX PARTE 15 APPLICATION AND [PROPOSED] v. ORDER TO PERMIT RESPONDENT TO 16 FILE A SUPPLEMENTAL MEMORANDUM OF POINTS AND 17 CALIFORNIA DEPARTMENT OF STATE AUTHORITIES IN RESPONSE TO HOSPITALS, TENTATIVE RULING RE MOTION 18 FOR JUDGMENT ON THE Respondent. PLEADINGS 19 Date: March 18, 2021 20 Time: 3:30 p.m. Dept: 402 21 Judge: The Honorable D. Tyler Tharpe Trial Date: None Assigned 22 Action Filed: November 1, 2018 23 INTRODUCTION 24 Respondent California Department of State Hospitals (Department) respectfully requests 25 that this Court permit the filing of the attached supplemental memorandum of points and 26 authorities in response to the Court's tentative decision on the motion for judgment on the 27 pleadings in this matter. This supplemental memorandum responds to the Court's concern that 28 this motion for judgment on the pleadings is precluded by Code of Civil Procedure section DSH's Ex Parte App. Re Supplemental Brief on Tentative Decision on Mot. Jdmt. Pleadings (18CECG04118) 430.41, subdivision (b ), and its bar on the assertion of a demurrer to an amended pleading raising 2 grounds that could have been previously raised in a challenge to the earlier pleading. Because 3 petitioner's belated opposition brief was not received by respondent's counsel until February 17, 4 2021, the Department did not have the opportunity to fully brief this issue before the tentative 5 ruling issued on February 16 2021. This brief will enhance judicial economy by providing, in 6 writing, the statutory and decisional law supporting the Department' s position on this issue. The 7 Department does not oppose providing petitioner an opportunity to respond with a supplemental 8 brief, and to a continuance of the hearing to enable such briefing by petitioner. Because judicial 9 economy will be served by permitting this supplemental briefing; hence, this ex parte application 10 should be granted. 11 RELEVANT PROCEDURAL BACKGROUND 12 On November l , 2018, Sullivan filed this petition for a writ of mandamus and complaint for 13 declaratory relief and damages. (Ct. Docket.) 14 On November 4, 2019, the Department filed a demurrer. (Ct. Docket) This Court 15 overruled the demurrer. (Ibid.) The Department then filed an answer to the petition-complaint. 16 (Ibid.) 17 The Department filed a motion for judgment on the pleadings on January 19, 202 1, with a 18 scheduled hearing date of February 18, 2021. (Ct. Docket.) Sullivan filed belated opposition on 19 February 16, 2021. (Ibid.) The Department's counsel did not receive the belated opposition until 20 February 17, 2021. (Deel. Tillman,~ 2.) 21 On February 18, 2021 , this Court issued a first corrected tentative ruling to deny the motion 22 for judgment on the pleadings. (Exh. L, Corrected Tentative Ruling.) The tentative ruling states, 23 in pertinent part, that "a defendant will not be able to raise any issues in a motion for j udgment on 24 the pleadings that could have been, but were not, raised in a prior demurrer. (See Code Civ. 25 Proc.,§ 430.41 , subd. (b).)" (Ibid.) The Department's supplemental memorandum of points and 26 authorities, with request for judicial notice, declaration of Lisa Tillman, and exhibits, in response 27 to this tentative ruling is attached as Exhibit 1. 28 2 DSH's Ex Parte App. Re Supplemental Brief on Tentative Decision on Mot. Jdmt. Pleadings ( I 8CECG04 I I 8) 1 MEET AND CONFER 2 On March 5, 2021 , the Department's counsel sent a letter to petitioner-plaintiff Sullivan and 3 infonned him of the intent to bring this ex parte application. (Deel. Tillman, ,r 3.) The same 4 letter was hand-delivered to petitioner-plaintiff on March 9, 2021. (Ibid) 5 LEGAL STANDARD 6 Courts have "inherent authority to control their own calendars and dockets." ( Walker v. 7 Superior Court (1991) 53 Cal.3d 257, 267: see also Rutherford v. Owens-Illinois, Inc . (1997) 16 8 Cal.4th 953, 967 [noting that "courts have fundamental inherent equity, supervisory, and 9 administrative powers, as well as inherent power to control litigation before them" ).) 10 LEGAL ARGUMENT 11 This Court should grant the Department's request to file the attached short supplemental 12 brief addressing whether this motion for judgment on the pleadings is precluded by the limitation 13 stated in Code of Civil Procedure section 430.14, subdivision (b). Petitioner raised this issue in 14 his belated opposition brief, leaving respondent insufficient time to provide a reply before the 15 tentative was posted. This brief will enhance judicial economy by providing, in writing, the 16 statutory and decisional law supporting the Department's position on this issue. The Department 17 does not oppose providing petitioner an opportunity to respond with a supplemental brief, and to 18 a continuance of the hearing to enable such supplemental briefing by petitioner. 19 II 20 II 21 II 22 II 23 II 24 II 25 II 26 II 27 II 28 II 3 DSH' s Ex Parte App. Re Supplemental Briefon Tentative Decision on Mot. Jdmt. Pleadings (18CECG041 18) 1 CONCLUSION 2 On all the grounds stated, this Court should grant this ex parte application to file the 3 attached supplemental brief. 4 Dated: March 9, 2021 Respectfully Submitted, 5 XAVIER BECERRA 6 Attorney General of California DARRELL W. SPENCE 7 Supervising Deputy Attorney General 8 9 10 LISA A. TILLMAN Deputy Attorney General 11 Attorneys for Defendant Department ofState Hospitals 12 SA20I9I02728 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DSH' s Ex Parte App. Re Supplemental Brief on Tentative Decision on Mot. Jdlnt. Pleadings (18CECG04 1 l 8) DECLARATION OF SERVICE BY OVERNIGHT COURIER Case Name: Sullivan v. DSH No.: 18CECG04118 I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter; my business address is: 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550. On March 12, 2021, I served the below listed documents: 1. Respondent's Ex Parte Application and [Proposed] Order to Permit Respondent to File a Supplemental Memorandum of Points and Authorities in Response to Tentative Ruling re Motion for Judgment on the Pleadings; 2. Declaration of Lisa Tillman in Support of Respondent's Ex Parte Application and [Proposed] Order to Permit Respondent to File a Supplemental Memorandum of Points and Authorities in Response to Tentative Ruling re Motion for Judgment on the Pleadings by placing a true copy thereof enclosed in a sealed envelope with the (GoldenState], addressed as follows: Manse Sullivan C-000425-9 Coalinga State Hospital 24511 West Jayne Avenue Coalinga, CA 93210-5003 I declare under penalty of perjury under the laws of the State of California and the United States of America the foregoing is true and correct and that this declaration was executed on March 12, 2021, at Sacramento, California. J. Hutcherson Declarant SA20l9 102n 8 34910304 docxJ4910304 DOCX