Judge Ashfaq G. Chowdhury, Case Number: 23GDCV01994, Date: 2024-02-16 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV01994, Date: 2024-02-16 Tentative Ruling

Case Number: 23GDCV01994 Hearing Date: February 23, 2024 Dept: E

Case No: 23GDCV01994
Hearing Date: 02/23/2024 – 8:30am

Trial Date: UNSET

Case Name: ROBERT TOROSIAN, an individual; MARINA FERMANYAN, an individual; and ALOUST GREGORY TOROSIAN v. EDGAR MADATYAN; an individual; ELVIS MADATYAN, an individual; GLENDALE FRENCH BAKERY, INC., dba PAPILLON INTERNATIONAL BAKERY, a California corporation; LIANA YOZALYAN, an individual; and DOES 1-100 inclusive

[TENTATIVE RULING ON DEMURRER AND MOTION TO STRIKE]

Moving Party: Defendant, Elvis Madatyan

Responding Party: No Opposition

Moving Papers: Demurrer and motion to strike (All submitted in a single filing)

Opposition Papers: No Opposition submitted

Reply Papers: No Reply submitted

RELIEF REQUESTED
Defendant, Elvis Madatyan, moves the Court for an order sustaining his demurrer to the third, fourth, fifth, sixth, seventh, and ninth causes of action of Plaintiffs’ Complaint pursuant to CCP §430.10.

Defendant moves to strike the following from Plaintiffs’ Complaint:

The demand for “punitive damages” and “attorney fees” from the first, third, sixth, and ninth causes of action and in the Prayer for Relief.

PROCEDURAL ANALYSIS
Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP §1013, §1013a, §1013b): Yes and No – Two attorneys are listed on eCourt as the Plaintiffs’ counsel. Ignacio J. Lazo is listed as Plaintiffs’ counsel, and Bobby Samini is also listed as Plaintiffs’ counsel. According to the proof of service, this demurrer and motion to strike was served via email to bsamini@saminilaw.com and andrew.sussman@saminilaw.com. Therefore, it appears as if Bobby Samini was served this demurrer and motion to strike, but Ignacio J. Lazo was not. Moving Defendant’s counsel can address this issue at the hearing.

TENTATIVE RULING

“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. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.” (CCP §472(a).)

The Complaint in this action was filed on 09/19/2023. Moving Defendant’s demurrer and motion to strike was filed and served on 01/17/2024. Since the instant hearing date is for 02/23/2024, the deadline for filing an opposition to the instant demurrer and motion to strike would have been 02/08/2024. Here, the First Amended Complaint (FAC) was filed on 02/02/2024, which is before the opposition deadline for the instant demurrer and motion to strike.

Plaintiffs’ filing of the FAC after the filing of the demurrer and motion to strike, but before the deadline for filing an opposition to the demurrer or motion to strike, would normally moot the instant demurrer and motion to strike. However, CCP §472(a) also specifies that the amended pleading must be “…filed and served no later than the date for filing an opposition to the demurrer or motion to strike.” (CCP §472(a); emph added.)

The potential problem here is that the Defendants named in the FAC are Edgar Madatyan; Elvis Madatyan; Glendale French Bakery, Inc., dba Papillon International Bakery, a California corporation; and Liana Yozalyan. The proof of service for the FAC indicates service by electronic mail on Lewis Brisbois who appears to be counsel for Glendale French Bakery and Liana Yozalyan, and it indicates electronic service on Shaghzo & Shaghzo who appears to be counsel for Elvis Madatyan. The proof of service of the FAC does not indicate service on Defendant Edgar Madatyan. Counsel for Plaintiffs should address this issue at the hearing. If Plaintiffs’ counsel can address this issue, the Court will likely find this demurrer and motion to strike moot based on Plaintiffs’ filing of the FAC.

As stated in State Compensation Ins. Fund v. Superior Court:

“ ‘It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.’ ” (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 884, 92 Cal.Rptr. 162, 479 P.2d 362, quoting Meyer v. State Board of Equalization (1954) 42 Cal.2d 376, 384, 267 P.2d 257.) Thus, an amended complaint supersedes all prior complaints. (Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4^th 1300, 1307, 87 Cal.Rptr.2d 358; Lee v. Bank of America (1994) 27 Cal.App.4^th 197, 215, 32 Cal.Rptr.2d 388; 1 Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) *1131 ¶ 6:704, p. 6–177.) The amended complaint furnishes the sole basis for the cause of action, and the original complaint ceases to have^any effect either as a pleading or as a basis for judgment. **93 (Anmaco, Inc. v. Bohlken (1993) 13 Cal.App.4^th 891, 901, 16 Cal.Rptr.2d 675.)

Because there is but one complaint in a civil action (Ford v. Superior Court (1973) 34 Cal.App.3d 338, 343, 109 Cal.Rptr. 844), the filing of an amended complaint moots a motion directed to a prior complaint. (See Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4^th 1049, 1054, 18 Cal.Rptr.3d 882 [filing of first amended complaint rendered moot demurrer to original complaint].)

(State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130-31.)

Further, the parties are also reminded of their obligations under CCP §430.41(a), “…If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.”

The Court will hear from Plaintiffs’ counsel as to the issue addressed above. The Court will also hear from Defendants’ counsel on the service issue of the demurrer and motion to strike.