Judge: Anne Richardson, Case: 24STCV05169, Date: 2024-09-09 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 24STCV05169    Hearing Date: September 9, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

On February 29, 2024, Plaintiff Abigail Beckett (Beckett) filed a complaint against The Big Fix, LLC dba The Craftsman Bar & Kitchen, John Grondorf, Xonatitlan Luques, Harris Echevarria and Does 1-20 (collectively, Defendants) alleging causes of action for (1) Sexual Battery [Civ. Code § 1708.5]; (2) Sexual Harassment [Gov. Code § 12940(J)]; (3) Constructive Discharge in Violation of Public Policy; (4) Failure to Prevent Harassment [Gov. Code § 12940(K)]; (5) Retaliation for Exercising Rights Under the FEHA; (6) Whistle-Blower Retaliation [Lab. Code § 1102.5]; and (7) Civil Code §§ 51.7 and 52.

Beckett worked as a server at The Craftsman Bar & Kitchen in Santa Monica (the Craftsman) from August 2022 until April 9, 2023. (Compl. ¶ 9.) She alleges that throughout her employment, other Craftsman staff members including two cooks, Defendants Xonatitlan Luques (Luques) and Harris Echevarria (Echevarria), sexually harassed her and touched her inappropriately. (Compl. ¶¶ 12-17.) Beckett alleges that she initially reported these incidents to her managers, but no action was taken (Compl. ¶¶ 13, 19.) As a result of reporting the incidents, Beckett alleges that her hours were cut, and her shifts were reduced (Compl. ¶¶ 13, 25, 27, 29.) Further, Beckett alleges that managers, including Defendant John Grondorf (Grondorf), were readily aware that Luques and Echevarria were sexually harassing female staff members and that the Craftsman had a culture of protecting the two cooks and firing female servers who complained about their conduct. (Compl. ¶¶ 18-19.) Eventually Luques and Echevarria were transferred to another bar. (Compl. ¶ 30.) On April 9, 2024, Beckett resigned. (Compl. ¶ 32.) She alleges that she was constructively terminated, suffering economic, non-economic, and emotional damages. (Compl. ¶ 32.)

B. Motion Before the Court

On May 24, 2024, Defendant Grondorf filed this demurrer to the complaint and a meet and confer declaration in support of the demurrer.

On August 21, 2024, Beckett filed a first amended complaint (FAC). Proof of service filed with the Court shows that the FAC was served on Grondorf on August 22, 2024.  

No answers, oppositions, or replies are on file with the Court.

II. Motion

A. 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.)

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 [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].) Further, one defendant’s filing of an answer did not divest the plaintiff of the right to amend the complaint with respect to the causes of action brought against other demurring defendants. (Barton v. Kahn (2007) 157 Cal.App.4th 1216, 1219-1221.) 

B. Analysis

Pursuant to Code of Civil Procedure sections 472, subdivision (a), Plaintiff was entitled to, as a matter of right, file a FAC as of  August 26, 2024, nine court days prior to this hearing. 

Beckett filed the FAC on August 21, 2024, which was before the date on which Beckett’s opposition to the present demurrer was due. Thus, Beckett’s filing the FAC renders the subject demurrer moot. (See CCP § 472 subd. (a); JKC3H8, supra, 221 Cal.App.4th at 477.)

III. Conclusion

Defendant John Grondorf’s Demurrer to Plaintiff’s Complaint is OVERRULED as MOOT.