Judge Kerry Bensinger, Case Number: 22STCV16869, Date: 2025-01-16 Tentative Ruling

This matter arises from alleged wrongful actions pertaining to the listing of residential real estate. On May 23, 2022, Plaintiff Investor Partners Inc. dba Bruce Jay Associates (Investor Partners) filed a Complaint against Defendant Sara Hechtman (Hechtman).

On June 10, 2022, Investor Partners filed the operative First Amended Complaint against Hechtman alleging a single cause of action for Breach of Contract. Hechtman filed an Answer to the Complaint on July 6, 2022.

On September 21, 2023, after the court granted Hechtman’s Motion for Leave to File a Cross-Complaint, Hechtman filed a Cross-Complaint against Investor Partners. On April 9, 2024, pursuant to stipulation with Investor Partners, Hechtman filed the Second Amended Cross-Complaint (SAXC), alleging causes of action for (1) Intentional Breach of Fiduciary Duty; (2) Negligent Breach of Fiduciary Duty; (3) Conversion; (4) Violation of Penal Code § 496; (5) Negligence; (6) Intentional Interference with Prospective Economic Advantage; (7) Negligent Interference with Prospective Economic Advantage; and (8) Breach of Contract.

On May 13, 2024, Investor Partners filed a demurrer to the third, fourth, sixth, seventh, and eighth causes of action in the SAXC, as well as a motion to strike portions of the SAXC.

The demurrer and motion to strike were heard on September 11, 2024. On September 19, 2024, after taking the matter under submission, the court issued its final ruling: (1) sustaining the demurrer to the third, fourth, sixth, and seventh causes of action and granting leave to amend as to the sixth and seventh causes of action only, (3) overruling the demurrer to the eighth cause of action, (4) striking the request for punitive damages and granting leave to amend, and (5) finding the motion to strike attorneys’ fees and treble damages as moot.

On October 14, 2024, Hechtman timely filed the Third Amended Cross-Complaint (TAXC) alleging causes of action for (1) Intentional Breach of Fiduciary Trust; (2) Negligence; (3) Intentional Interference with Prospective Economic Advantage; (4) Negligent Interference with Prospective Economic Advantage; and (5) Breach of Contract.

On November 15, 2024, Investor Partners filed a demurrer to the third and fourth causes of action in the TAXC, as well as a motion to strike portions of the TAXC.

On January 2, 2025, Hechtman filed the Fourth Amended Cross-Complaint without leave of court.

On January 6, 2025, Hechtman filed an opposition to the demurrer and motion to strike, arguing they were mooted by the filing of the Fourth Amended Cross-Complaint.[1]

Hechtman argues she is entitled to file the Fourth Amended Cross-Complaint because she is entitled to do so once without leave of court. Hechtman is mistaken. “A party may amend its pleading once without leave of the court at any time before the answer or demurrer is filed, or after a demurrer is filed but before the demurrer is heard if the amended complaint ... is filed and served no later than the date for filing an opposition to the demurrer. A party may amend the complaint ... after the date for filing an opposition to the demurrer, upon stipulation by the parties.” (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 573 (Hedwall), citing Code Civ. Proc., § 472.) However, the section 472 right to amend is confined to the original complaint. (See Hedwall, at pp. 573-579 (concluding, as a matter of first impression, that the section 472 right to amend applies only to the original complaint).) Accordingly, Hechtman cannot rely on section 472 to file her Fourth Amended Cross-Complaint.

Moreover, Hechtman’s unauthorized filing of the Fourth Amended Cross-Complaint amounts to an admission that Investor Partners’ demurrer and motion to strike are meritorious. Indeed, Hechtman does not offer any argument on the sufficiency of the allegations in the TAXC.

Accordingly, Investor Partners’ demurrer to the third and fourth causes of action is SUSTAINED. The motion to strike is GRANTED. Leave to amend is GRANTED.

Hechtman is directed to re-serve and re-file the Fourth Amended Cross-Complaint within 5 court days of this order.

Kerry Bensinger

Judge of the Superior Court

[1] The court notes that Hechtman’s opposition was not timely filed. Nonetheless, the court considers and rejects Hechtman’s opposition on other grounds.