Judge: Anne Richardson, Case: 23STCV20033, Date: 2024-01-31 Tentative Ruling

Case Number: 23STCV20033    Hearing Date: January 31, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings

On August 21, 2023, Plaintiff Richard McCoy filed a Complaint suing Defendants Joseph Rechtman—as an individual, as Trustee of The Hillel chabd Trust dated March 12, 2020, and as Trustee of The Hillel chabd Trust as Joseph Rechtman trustee dated March 12, 2020—and Does 1 to 50.

The Complaint alleged claims of (1) Tortious Breach of the Warranty of Habitability, (2) Breach of the Warranty of Habitability (Contract), (3) Violation of Civil Code Section 1942.4, (4) Private Nuisance, (5) Unlawful Collection of Rent and Collection of Excessive Rent, (6) Failure to Pay Relocation Assistance, (7) Violation of Unfair Competition Law, (8) Negligence, (9) Breach of the Covenant of Quiet Enjoyment, and (10) Violation of Civil Code § 789.3.

The claims arose from allegations that Plaintiff rented residential premises from Defendants and that the premises contained uninhabitable conditions in violation of various laws and Plaintiff’s rights. The claims also arose from allegations that the City of Los Angeles Department of Building and Safety (LADBS) inspected the premises in January 2023 and issued a written Substandard Order and Notice of Fee, finding violations of Los Angeles Municipal Code sections 12.21A.1.(a), 91.0104.2.5, 91.0106.1.1, 91.0106.3.2.1, 91.0108.1, 91.0109.1, 91.8203, 91.8204, 91.8902, 91.8105, 93.0104, 93.0201, 94.103.1.2, 95.112.1, among other things.

Motion Before the Court

On October 21, 2023, Defendant Rechtman—in pro per—filed a “demurrer” and “motion to strike.” However, a review of the points and authorities shows that Defendant Rechtman frames the motion as a demurrer alone and merely reserved the hearing as involving a demurrer and a motion to strike.

On October 23, 2023, Defendant Rechtman filed a meet and confer declaration in support of the demurrer.

On December 18, 2023, Plaintiff filed a case management conference statement that argues that “Defendant is in pro-per, and failed and/or refuse to Meet and Confer with Plaintiffs counsel before filing a Demurrer.”

On January 30, 2023, Plaintiff filed a First Amended Complaint (FAC).

Defendant Rechtman has not filed any reply or notice of non-opposition since January 18, 2023, i.e., nine court days prior to this hearing, when the opposition or an amended pleading was due.

Defendant Rechtman’s demurrer and “motion to strike” are now before the Court.

Demurrer and “Motion to Strike”

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 [“The 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.)

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 [holding, as a matter of first impression, that a party’s right to amend a pleading as a matter of course under Code of Civil Procedure section 472, subdivision (a) is limited to the original pleading commencing the action].)

A court has discretion to consider a late filing. (See Iverson v. Superior Court (1985) 167 Cal.App.3d 544, 549 (Iverson) [on peremptory writ of mandate, reversing trial court order refusing to consider late-filed opposition not filed in conformity with Code Civ. Proc., § 1005, subd (b) because “even when local rules do have the force of law, courts should always ‘exercise their discretion and relieve the attorney from tardy opposition filings when his conduct was reasonable,’” “‘[r]igid rule following is not always consistent with a court's function to see that justice is done,’” and, in light “‘of the strong policy favoring the disposition of cases on their merits [citations], judges usually consider whether to exercise their discretion in applying local court rules and frequently consider documents which have been untimely filed,’” citations omitted].)

Demurrer and “Motion to Strike”: MOOT.

The hearing on the demurrer and “motion to strike” is set for January 31, 2024.

Pursuant to Code of Civil Procedure sections 472, subdivision (a), and 1005, subdivision (b), Plaintiff was entitled to, as a matter of right, file a first amended pleading as of January 18, 2024, nine court days prior to this hearing.

However, here, that filing was not made until January 30, 2024, one court day prior this hearing.

Accordingly, the FAC here was not filed as a matter of right, nor was it filed with leave of Court. (Code Civ. Proc., §§ 472, subd. (a), 1005, subd. (b).)

However, the Court exercises its discretion to permit the late filing of the FAC pursuant to and for the policy reasons detailed Iverson above. Here, the FAC was filed eight court days late, one court day prior to the hearing. The Court concludes that it should permit the late filing of the amendment and allow the proceedings to move forward on the late-filed FAC. Such an amendment will permit an adjudication on the merits, and adherence to a strict rule here would add nothing to the Court’s review and delay the proceedings for no reason. (Iverson, supra, 167 Cal.App.3d at p. 549.) 

Conclusion

Defendant Joe Rechtman’s Demurrer to Plaintiff’s Compl[]aint is MOOT.

Defendant Joe Rechtman’s “motion to strike”—never filed—is MOOT.