Judge: Douglas W. Stern, Case: 22STCV33017, Date: 2023-01-18 Tentative Ruling

Case Number: 22STCV33017    Hearing Date: January 18, 2023    Dept: 68

Knight’s Restaurant Group, Inc. vs. Ninja Plumber Inc., et al., Case No. 22STCV33017

MOVING PARTY:                Defendants Ninja Plumber Inc. and Mor Cazakov

RESPONDING PARTY:      Plaintiff Knight’s Restaurant Group, Inc.

MOTION:                               Demurrer to Complaint with Motion to Strike

            This case arises out of Defendants’ alleged failure to complete work at Plaintiff’s establishment and Defendants’ alleged misrepresentations as to the work that was performed. Plaintiff’s original Complaint alleged six causes of action for (1) Intentional Misrepresentation; (2) violations of Penal Code Sections 496(a) & (c); (3) Unjust Enrichment; (4) Negligent Misrepresentation; (5) Conversation; and (6) Money Had and Received.

This action was originally filed by Plaintiff on October 7, 2022. Defendants filed this Demurrer with Motion to Strike to the original complaint on November 14, 2022. Because the hearing is on January 18, 2023, any opposition or amended complaint filed pursuant to CCP § 472(a) would have been due nine court days before the hearing. Nine court days before the hearing was January 4, 2023. However, Plaintiff did not file either an opposition or its amended complaint until January 10, 2023.

The Court could refuse to accept Plaintiff’s amended complaint as untimely and go forward with the hearing on the demurrer with motion to strike. However, particularly given the nature of the claimed defects in the complaint, even if the demurrer were sustained, the Court would likely grant leave to amend.  Since the First Amended Complaint has been filed, the Court shall not engage in an unnecessary act of ruling on the demurrer and motion to strike.

Therefore, the Court will take the hearing off calendar and order that the First Amended Complaint be deemed served on Defendant as of the date of notice of this Order (or as of the date of the hearing if notice is waived).

Plaintiff is reminded that the statutes and rules are not mere suggestions.  The Court commences work on motions days in advance.  Failure to timely file papers is not acceptable and may lead to sanctions in the future.