Judge: Curtis A. Kin, Case: 20STCV12977, Date: 2023-02-02 Tentative Ruling

Case Number: 20STCV12977    Hearing Date: February 2, 2023    Dept: 72

DEMURRER

Date:        2/2/23 (9:30 AM)                   

Case:       Marlon Mora v. Haul Away Rubbish Service, Co. et al. (20STCV12977)

TENTATIVE RULING:

On January 20, 2023, plaintiff Marlon Mora lodged with the Court a First Amended Complaint, which attempts to assert claims against demurring defendants Morris M. Beliakoff and John Beliakoff, as well as defendants in whose favor Judgment has been entered with respect to the original complaint (Haul Away Rubbish Service Co., David Beliakoff, Un Bug Me Pest Control, Inc., and Juan Juarez) and a defendant who was dismissed from the case (Juan Juarez).

Ordinarily, the timely filing of an amended pleading will moot a demurrer as to the prior pleading. Relatedly, a plaintiff may amend a pleading as to a demurring defendant, even if other defendants have answered the prior pleading.  (Barton v. Khan (2007) 157 CalApp.4th 1216, 1220-1221.)  Here, however, plaintiff has lodged with the Court an amended pleading that, on its face, improperly attempts to revive claims that have been adjudicated and bring back a defendant who has been dismissed.

The Court inquires of plaintiff whether the Court can or should accept for filing the proposed First Amended Compliant, whether the Demurrer to the Complaint should instead be heard, and/or whether plaintiff seeks leave to file an amended complaint that does not suffer from the apparent deficiencies discussed herein.

Further, the Court inquires whether the Cross-Complaints of former defendants Haul Away Rubbish Service, Co. and David Beliakoff, respectively filed on May 13, 2020, and March 1, 2021 against unnamed ROE defendants, should be dismissed.