Judge: Armen Tamzarian, Case: 24STCV04836, Date: 2024-06-13 Tentative Ruling

Case Number: 24STCV04836    Hearing Date: June 13, 2024    Dept: 52

Defendants SurrogateFirst, Lina Li, and Jeff Hu’s Demurrer and Motion to Strike Portions of Complaint

            Defendants SurrogateFirst, Lina Li, and Jeff Hu demur to all four causes of action alleged in the complaint by plaintiff Mingxi Zhu.  Defendants further move to strike several portions of the complaint regarding punitive damages and attorney fees. 

Plaintiff did not oppose the demurrer or motion to strike.  Instead, plaintiff attempted to file a first amended complaint on June 3.  “A party may amend its pleading once without leave of the court … 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.”  (CCP § 472(a).)  Plaintiff had the right to file a first amended complaint by May 31, nine court days before this hearing on June 13.  (CCP § 1005(b).) 

By submitting an amended pleading, plaintiff “manifested implied consent to” sustaining the demurrer and granting the motion to strike with leave to amend.  (Sharifpour v. Le (2014) 223 Cal.App.4th 730, 734.)  Permitting plaintiff to file the first amended complaint serves the interests of justice and judicial economy.  Plaintiff missed the deadline to file it by one court day. 

Disposition

            Defendants SurrogateFirst, Lina Li, and Jeff Hu’s demurrer to plaintiff Mingxi Zhu’s complaint is sustained with 15 days’ leave to amend.  Defendants’ motion to strike portions of the complaint is granted with 15 days’ leave to amend.