Judge Lee W. Tsao, Case Number: 23NWCV01362, Date: 2024-02-20 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV01362, Date: 2024-02-20 Tentative Ruling

Case Number: 23NWCV01362 Hearing Date: February 20, 2024 Dept: C

Bessie Fierro, Individually and As Successor-in-Interest to Decedent Valerie Mejia vs Kalaveras Inc. et al.

Case No.: 23NWCV01362

Hearing Date: February 20, 2024 @ 9:30 AM

Tentative Ruling

Defendants’ Motion for Judgment on the Pleadings is DENIED.

Plaintiff to give Notice.

Background

This is a wrongful death action.

Plaintiff BESSIE FIERRO (“Plaintiff”) is the parent of decedent VALERIE MEJIA (“Decedent”) who was involved in a fatal car crash on January 10, 2022. Defendant KALAVERAS SA INC. operates a restaurant and bar located in Chino Hills. Plaintiff alleges that Defendants served drinks to Decedent prior to her driving and ultimately succumbing to injuries related to a motor vehicle accident.

Defendants Kalaveras SA Inc. (erroneously named herein as Kalaveras Inc.), Jose Brito, Daniel Brito, Angel Bahena and Isaias Ocampo Brito (“Defendants”) move for Judgment on the Pleadings on the grounds they owed no duty to Decedent.

The operative First Amended Complaint was filed on August 18, 2023.

Discussion

Defendants’ Motion for Judgment on the Pleadings attacks the Complaint filed on May 5, 2023. However, the Complaint is no longer the operative pleading because it was superseded by Plaintiff’s First Amended Complaint filed on August 18, 2023. Defendants’ Motion was filed on October 23, 2023. Plaintiff represents she intends to seek leave to file a Second Amended Complaint. Because Defendants’ Motion fails to address the operative pleading, the motion is DENIED.

Sanctions

Pursuant to CCP §128.7(c)(2), this Court can award reasonable expenses and attorneys’ fees incurred to Plaintiff in having to oppose Defendants’ frivolous Motion for Judgment on the Pleadings. (See also CCP §128.7 (a) & (b).)

Counsel for Plaintiff requests sanctions for filing a frivolous motion. Counsel for Plaintiff indicates he advised Counsel for Defendants that he intended to file a Second Amended Complaint. Counsel for Plaintiff argues this should have alerted Defendants that their Motion attacking the original Complaint was fatally defective. (Neubauer Decl., ¶¶ 6-8.) The point is well taken. However, because Defendants’ error was not willful and was procedural in nature, the Court declines to impose sanctions.