Judge: Audra Mori, Case: 22STCV06763, Date: 2023-02-17 Tentative Ruling

Case Number: 22STCV06763    Hearing Date: February 17, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiffs Junning Fu (“Junning”) and Nadia Fu (“Nadia”) (collectively, “Plaintiffs”) filed this action against Defendants Tiger Tinting Studio (“Tiger Tinting”) and Dong Li aka Tiger Lee (“Li”) (collectively, “Defendants”) for damages relating to an alleged physical attack by Li, the owner and manager of Tiger Tinting, on Junning in the presence of his spouse, Nadia. 

Following an order sustaining Defendants’ demurrer to the complaint with leave to amend, (Min. Order, July 27, 2022), Plaintiffs filed their First Amended Complaint on August 8, 2022, alleging claims for negligence, battery, and intentional infliction of emotional distress.  After Plaintiffs’ current counsel substituted into the action, Plaintiffs attempted to file a “Corrected First Amended Complaint” alleging causes of action for negligence, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and loss of consortium.  The docket indicates that the “Corrected First Amended Complaint” was rejected on October 31, 2022.

Defendants now demur to the Corrected First Amended Complaint arguing that each cause of action fails to state sufficient facts to constitute a claim against Defendants.  Additionally, Defendants move to strike the prayer for punitive damages contained therein. 

However, there is no showing in the Court records that Plaintiffs were ever granted leave to file the Corrected First Amended Complaint, or that the parties otherwise stipulated to allow Plaintiffs to file the Corrected First Amended Complaint, which added additional allegations and new causes of action to the First Amended Complaint.  Although titled as a Corrected First Amendment Complaint, this pleading is clearly an attempt to file a second amended complaint without leave of court or the parties stipulating to such, which is improper.  (See CCP § 472(a).)  Indeed, the docket shows that the Corrected First Amended Complaint was “received” but not filed on October 27, 2022, and rejected on October 31, 2022.[1]  Plaintiffs’ operative pleading in this matter is the First Amended Complaint filed August 8, 2022.  

Because the demurrer and motion to strike are directed at the Corrected First Amended Complaint, they are taken off calendar as moot, as the Corrected First Amended Complaint was rejected, not filed. 

Defendants are ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 17^th day of February 2023