Judge: Katherine Chilton, Case: 22STLC07061, Date: 2023-01-17 Tentative Ruling

Case Number: 22STLC07061     Hearing Date: January 17, 2023    Dept: 25

PROCEEDINGS:      DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:   Defendants Shanping He, et al.

RESP. PARTY:         None

DEMURRER WITH MOTION TO STRIKE

(CCP §§ 430.10, 435 et seq.)

TENTATIVE RULING:

Defendant Shanping He, et al.’s Demurrer with Motion to Strike is OVERRULED AS MOOT.

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))                     NOT OK

OPPOSITION:          None filed as of January 9, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of January 9, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On October 21, 2022, Plaintiffs Bbever LLC (“Bbever”) and Joanna Cheung (“Cheung”), (collectively “Plaintiffs”) brought an action against Defendants Shanping He (“He”) and Meiting Yu (“Yu”), (collectively “Defendants”), for property damage and breach of contract.

On December 12, 2022, Defendants filed the instant Demurrer with Motion to Strike (“Demurrer with MTS”) to Plaintiffs’ Complaint.

On January 3, 2023, Plaintiffs filed the First Amended Complaint (“FAC”).

No opposition has been filed to the Demurrer.

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.)

Here, Plaintiffs have filed and served a timely First Amended Complaint.  Thus, the Demurrer with Motion to Strike is overruled as moot.

III.            Conclusion & Order

For the foregoing reason,

Defendant Shanping He, et al.’s Demurrer with Motion to Strike is OVERRULED AS MOOT.

Moving party is ordered to give notice.