Judge: Katherine Chilton, Case: 22STLC00053, Date: 2022-08-09 Tentative Ruling

Case Number: 22STLC00053     Hearing Date: August 9, 2022    Dept: 25

PROCEEDINGS:      DEMURRER TO COMPLAINT

MOVING PARTY:   Defendant Kellie Madison

RESP. PARTY:         None

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant Kellie Madison’s Demurrer to Plaintiff’s Complaint is OVERRULED AS MOOT and PLACED OFF CALENDAR.

The Court sets a hearing for Order to Show Cause Re: Why Sanctions Should Not be Imposed for Frivolous Action or Delaying Tactic by Plaintiff for Re-filing of Complaint as Amended Complaint (California Rules of Court, rule 5.74(a)(2) and CCP §128.5) on OCTOBER 31, 2022 at 9:30 A.M. in Department 25 at Spring Street Courthouse.

SERVICE: 

[ X ] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[ X ] Correct Address (CCP §§ 1013, 1013a)                                     OK

[ X ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          None filed as of August 4, 2022.               [   ] Late                      [X] None

REPLY:                     None filed as of August 4, 2022.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On January 4, 2022, Plaintiff Anthony Sword (“Plaintiff”) filed an action against Defendant Kellie Madison dba Madison Films, LLC (“Defendant”) for breach of contract and accounting arising out of an alleged contract to produce a commercial.

On May 19, 2022, Defendant filed a Declaration of Demurring Party in Support of Automatic Extension seeking an extension to file the Demurrer and additional time to meet and confer with Plaintiff.

            On June 22, 2022, Defendant filed a Demurrer – without Motion to Strike to the Complaint.  On July 25, 2022, Plaintiff filed an Amended Complaint.  Defendant responded with a Notice of Non-Opposition to Demurrer and Objection to Taking Demurrer Off Calendar on July 29, 2022.

            No reply was filed.

II.              Legal Standard and 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.”  (Code Civ. Proc., § 472(a).)  When plaintiff files an amended complaint after a demurrer is filed, but before it is decided, the demurrer must be overruled as moot.  (JKC3H8 v. Colton, (2013) 221 Cal.App.4th 468, 477; Meyer v. State Board of Equalization, (1954) 42 Cal. 2d 376, 384 (“It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading. [Citation.]”; Cal. Rules of Court, Rule 5.74(a)(2).)

Here, Plaintiff filed a timely Amended Complaint on July 25, 2022, eleven (11) court days before the hearing set for the Demurrer.  Defendant argues that the Demurrer should not be taken off calendar because the Amended Complaint is “identical to the original complaint, with no additional factual allegations.”  (7-29-22 Notice.)  The Court agrees that the Amended Complaint is nearly identical; however, the Court cannot rule on the Demurrer as an Amended Complaint has been filed and has superseded the Demurrer.

Thus, the Demurrer is OVERRULED as MOOT and PLACED OFF CALENDAR.

III.            Conclusion & Order

For the foregoing reason, Defendant Kellie Madison’s Demurrer to Plaintiff’s Complaint is OVERRULED AS MOOT and PLACED OFF CALENDAR.

The Court sets a hearing for Order to Show Cause Re: Why Sanctions Should Not be Imposed for Frivolous Action or Delaying Tactic by Plaintiff for Re-filing of Complaint as Amended Complaint (California Rules of Court, rule 5.74(a)(2)and CCP §128.5) on OCTOBER 31, 2022, at 9:30 AM in Department 25 at Spring Street Courthouse.

Moving party is ordered to give notice.