Department 30, Spring Street Courthouse

July 26, 2022

22STCV12579

Defendant Mary Piltser, DDS’s Demurrer with Motion to Strike

The Demurrer and Motion to Strike are denied as moot.

The FAC received on July 7, 2022 is filed.

Answer or other responsive pleading is due within 30 days after the date of this order.

Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.

On April 14, 2022, Plaintiff Oksana Shelest (“Plaintiff”) filed this action against Defendants Mary Piltser, DDS (“Piltser”), Woodland Hills Dental Group (“WHDG”) and Pedram Fakheri, DDS (“Fakheri”) for dental malpractice and fraud. 

On July 7, 2022, Plaintiff filed the First Amended Complaint, adding another cause of action for fraud. 

On June 27, 2022, Piltser filed a Demurrer with Motion to Strike to the initial complaint, set to be heard on July 26, 2022. 

Trial is currently set for October 12, 2023. 

CCP § 472 provides that “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. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.”

Under CCP § 1005, all papers opposing a motion shall be filed and served at least nine court days prior to the hearing. 

Piltser filed this demurrer to the original complaint on June 27, 2022, with it set to be heard on July 26, 2022. As Plaintiff had yet to amend the initial complaint, Plaintiff was entitled to amend the complaint without the leave of Court prior to the hearing on the demurrer, so long as the First Amended Complaint was filed prior to the date for filing an opposition to the demurrer. 

Plaintiff’s opposition would have been due 9 court days prior to the hearing, which would have been July 13, 2022. Plaintiff filed and served the First Amended Complaint on July 7, 2022. Thus, the First Amended Complaint is now the operative complaint. Piltser’s demurrer and motion to strike to the initial complaint are moot.