Judge: Douglas W. Stern, Case: 22STCV33017, Date: 2023-05-17 Tentative Ruling

Case Number: 22STCV33017    Hearing Date: May 17, 2023    Dept: 68

Knight’s Restaurant Group, Inc. vs. Ninja Plumber Inc., et al.; 22STCV33017

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

RESPONDING PARTY: Defendants Ninja Plumber Inc. and Mor Cazakov

Demurrer to Answer to First Amended Complaint

This action was originally filed by Plaintiff on October 7, 2022. The case arises from Defendants’ alleged failure to complete work at Plaintiff’s establishment and Defendants’ alleged misrepresentations as to the work that was performed. Plaintiff’s First Amended Complaint alleges seven causes of action for (1) Intentional Misrepresentation; (2) violations of Penal Code Sections 496(a) & (c); (3) Unjust Enrichment; (4) Negligent Misrepresentation; (5) Conversation; (6) Money Had and Received; and (7) Concealment.

Plaintiff filed its First Amended Complaint on January 10, 2023. Defendants filed their answer on March 6, 2023. Plaintiff filed its demurrer to the answer on April 17, 2023. Because the hearing is on May 17, 2023, any opposition or amended answer filed pursuant to CCP § 472(a) was due nine court days before the hearing. Nine court days before the hearing would have been May 4. However, Defendants did not file their amended answer at that time.  It was filed on May 8, 2023.

The Court could refuse to accept Defendants’ amended answer as untimely and go forward with the hearing on the demurrer to the originally filed answer. However, even if the demurrer were sustained, the Court would likely grant leave to amend.

Therefore, the Court shall take the hearing on the demurrer off calendar. However, both parties have now filed late amended pleadings. The court will not tolerate further similar failures. Further failure to timely file documents may result in the papers being stricken and sanctions being awarded. The Court expects attorneys to follow the statutes and rules of practice.  

II. ORDER

1.    Plaintiff’s Demurrer to Defendants’ Answer is taken off the calendar.

2.    Defendants’ First Amended Answer filed on May 8, 2023.

3.    The First Amended Answer is deemed served as of the date of service of notice of this ruling.