Judge: John J. Kralik, Case: 22BBCV00162, Date: 2022-09-16 Tentative Ruling
Case Number: 22BBCV00162 Hearing Date: September 16, 2022 Dept: NCB
North
Central District
|
tequila tres
mujeres sa de cv, Plaintiff, v. USA WINE &
SPIRITS, INc., Defendant. |
Case
No.: 22BBCV00162 Hearing Date: September 16, 2022 [TENTATIVE]
order RE: demurrer |
BACKGROUND
A. Allegations
Plaintiff
Tequila Tres Mujeres Sa De CV (“Plaintiff”) alleges that in 2012, Plaintiff and
Defendant USA Wine & Spirits, Inc. (“Defendant”) entered into an oral
agreement whereby Plaintiff would produce and bottle Casino Azul branded
by Plaintiff and Defendant would sell the product to Defendant per purchase
orders from Defendant and corresponding invoices from Plaintiff. Plaintiff alleges that Defendant was obligated to
pay the invoices for the product on Net 30 credit terms. Plaintiff alleges that in May 2021, Defendant
started to order shipments of the product and was invoiced accordingly: (1)
Invoice No. 2602 dated May 28, 2021 for US$57,061.00; (2) Invoice No. 2633
dated June 11, 2021 for US$57,061.28; and (3) Invoice No. 2748 dated August 30,
2021 for US$53,042.88. Plaintiff alleges
that Defendant failed to pay for the product and the subject invoices remain
unpaid.
The complaint,
filed March 10, 2022, alleges causes of action for: (1) breach of contract; (2)
common counts; (3) open book account; and (4) account stated.
On Jun 10, 2022,
Defendant filed a cross-complaint against Plaintiff for: (1) breach of
contract; (2) promissory estoppel; (3) intentional misrepresentation; (4)
negligent misrepresentation; and (5) conversion.
B. Motion
on Calendar
On August 8,
2022, Plaintiff/Cross-Defendant filed a demurrer to
the 1st and 5th cause of action of the cross-complaint.
The Court is not
in receipt of an opposition brief.
On September 9,
2022, Defendant/Cross-Complainant filed a First Amended Cross-Complaint
(“FAXC”)
On September 9,
2022, Plaintiff filed a reply
brief.
DISCUSSION
“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.” (CCP §
472(a).)
Here, Defendant/Cross-Complainant amended
the pleading following the date that an opposition to the demurrer to
the initial cross-complaint was due. In
order to be timely, Defendant should have filed the FAXC by latest September 2,
2022. However, the Court recognizes that
the initial cross-complaint is Defendant’s first attempt at the pleading and,
thus, the Court will accept the amended pleading as the operative
cross-complaint in this action.
Thus, the demurrer to the initial cross-complaint is moot as
an amended pleading has been filed. In the future, Defendant is cautioned to
comply with the Code of Civil Procedure and the deadlines stated therein. Repetition
of the same or similar behavior may result in the Court exercising its
discretion to refuse to consider late-filed papers.
CONCLUSION AND
ORDER
Plaintiff/Cross-Defendant
Tequila Tres Mujeres Sa De CV’s demurrer to Defendant/Cross-Complainant USA
Wine & Spirits, Inc.’s cross-complaint is taken off-calendar as moot. The Court will accept the filing of the First
Amended Cross-Complaint and will deem it the operative cross-complaint.
Plaintiff/Cross-Defendant
shall
provide notice of this order.