Judge Holly J. Fujie, Case Number: 24STCV15703, Date: 2024-12-10 Tentative Ruling

MOVING PARTY: Defendants Cisco Bros. Corp. and Maurishka Pinedo (collectively “Defendants”)

The Court has considered the moving papers. No opposition or reply has been filed.

This is an employment discrimination action. On June 24, 2024, Plaintiff Juan Manuel Garcia (“Plaintiff”) filed a complaint (the “Complaint”) against Defendants alleging causes of action for: (1) Discrimination in Violation of Government Code §§ 12940 et seq.; (2) Retaliation in Violation of Government Code §§ 12940 et seq.; (3) Failure to Prevent Discrimination and Retaliation in Violation of Government Code §§ 12940(k); (4) Failure to Provide Reasonable Accommodations in Violation of Government Code §§ 12940 et seq.; (5) Failure to Engage in Good Faith Interactive Process in Violation of Government Code §§ 12940 et seq.; (6) For Declaratory Judgment; (7) Wrongful Termination in Violation of Public Policy; (8) Failure to Pay Wages [Cal. Labor Code §§ 201, 1182.12, 1194, 1194.2]; (9) Failure to Pay Minimum Wages [Cal. Labor Code §§ 1182.12, 1194, 1194.2, 1197]; (10) Failure to Pay Overtime Compensation [Cal. Labor Code §§ 510, 1194]; (11) Failure to Provide Meal Periods [Cal. Labor Code §§ 226 et seq.; (12) Failure to Provide Itemized Wage and Hour Statements [Cal. Labor Code §§ 226 et seq.; (13) Waiting Time Penalties [Cal. Labor Code §§ 210-203]; (14) Failure to Permit Inspection of Personnel and Payroll Records [Cal. Labor Code §§ 1198.5]; and (15) Unfair Competition [Bus. & Prof. Code §§ 17200 et seq.].

On September 9, 2024, Defendants filed this demurrer (the “Demurrer”) to the Complaint. On November 20, 2024, Plaintiff filed a first amended complaint (the “FAC”). Proof of service indicates that the FAC was served on Defendants on November 20, 2024 via email.

“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.” (Code Civil Procedure (“CCP”), § 472, subd. (a).) “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days … before the hearing.” (CCP § 1005, subd. (b).) “[T]he filing of an amended complaint moots a motion directed to a prior complaint.” (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477; see also Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054 [“The filing of [a] first amended complaint render[s] [a movant’s] demurrer moot since “‘an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading”’” (citations omitted)].) Accordingly, a “demurrer [directed to the original pleading] should [be] taken off calendar” when an amended complaint is filed. (People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 506.)

This right is limited, however, to the amendment of a complaint initiating an action into a first amended complaint; otherwise stated, a party cannot amend an already amended complaint as a matter of course even though a demurrer has been directed to the operative and already amended pleading. (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 572-579.) Further, one defendant’s filing of an answer did not divest the plaintiff of the right to amend the complaint with respect to the causes of action brought against other demurring defendants. (Barton v. Kahn (2007) 157 Cal.App.4th 1216, 1219-1221.)

Pursuant to CCP section 472, subdivision (a), Plaintiff was entitled to, as a matter of right, file a first amended complaint as of November 25, 2024, nine court days prior to this hearing. Plaintiff filed the FAC on November 20, 2024. Thus, Plaintiff’s filing the FAC renders the subject demurrer moot. (CCP § 472 subd. (a); JKC3H8, supra, 221 Cal.App.4th at 477.)

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court