Judge: Anne Richardson, Case: 22STCV36992, Date: 2023-05-05 Tentative Ruling

Case Number: 22STCV36992    Hearing Date: May 5, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

On November 23, 2022, Plaintiffs Vache Hovsepyan and Edvard Torosyan initiated this action suing Defendants NC4, LLC, Ryan Burns Collective Inc., David Hofflich, Jigar Patel, Osiris Ventures, LLC, South Cord, LLC, Adel Hajazi, and Does 1-100 pursuant to a Complaint alleging claims of (1) Breach of Contract, (2) Intentional Misrepresentation, (3) Negligent Misrepresentation, (4) False Promise, (5) Common Count – Money Had and Received, and (6) Unlawful, Unfair and Deceptive Business Practices (Bus & Prof., § 17200, et seq).

On February 1, 2023, Defendants NC4, LLC and Ryan Burns Collective Inc. demurred to the Complaint’s six causes of action on the ground that the claims are not sufficiently pleaded. Hearing on the demurrer was calendared for April 25, 2023.

On March 7, 2023, the Court, of its own motion, continued the hearing on the demurrer to May 5, 2023.

On April 5, 2023, instead of opposing the demurrer, Plaintiffs filed a First Amended Complaint pleaded against the same defendants and alleging claims of (1) Breach of Contract (Initial Deposit), (2) Breach of Contract (Secondary Deposit), (3) Breach of Implied Covenant of Good Faith and Fair Dealing, (4) Intentional Misrepresentation, (5) Negligent Misrepresentation, (6) False Promise, (7) Common Count – Money Had and Received, and (8) Unlawful, Unfair and Deceptive Business Practices (Bus & Prof., § 17200, et seq).

The demurrer is now before the Court. 

Demurrer

Legal Standard

“A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or 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.” (Code Civ. Proc., § 472, subd. (a).) “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days … before the hearing.” (Code Civ. Proc., § 1005, subd. (b).) “[T]he filing of an amended complaint moots a motion directed to a prior complaint.” (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477; see also Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054 [“[t]he filing of [a] first amended complaint render[s] [a movant’s] demurrer moot since “‘an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading”’” (citations omitted)].) Accordingly, a “demurrer [directed to the original pleading] should [be] taken off calendar” when an amended complaint is filed. (People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 506.) However, this right is limited to the amendment of a complaint initiating an action into a first amended complaint; otherwise stated, a party cannot amend an already amended complaint as a matter of course even though a demurrer has been directed to the operative and already amended pleading. (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 572-579.) 

Analysis

The demurrer filed by Defendants NC4, LLC and Ryan Burns Collective Inc. against Plaintiffs’ original November 23, 2022 Complaint is MOOT.

Hearing on the demurrer was set for May 5, 2023.

22 court days before the hearing, on April 5, 2023, Plaintiffs filed a First Amended Complaint.

Such a filing was made as a matter of course. (Code Civ. Proc., § 472, subd. (a).)

The FAC superseded the original November 23, 2022 Complaint and mooted the instant demurrer. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc., supra, 122 Cal.App.4th at p. 1054.)

Relief is available because the amended pleading involved the amendment of the original complaint into an amended complaint rather than the amendment of an already amended complaint. (Hedwall v. PCMV, LLC, supra, 22 Cal.App.5th at pp. 574-575.) 

Conclusion

Defendants NC4, LLC and Ryan Burns Collective Inc. Demurrer to Complaint is MOOT because Plaintiffs’ filing of the April 5, 2023 First Amended Complaint mooted the demurrer.