Judge: Lee W. Tsao, Case: 23NWCV01458, Date: 2024-01-30 Tentative Ruling

Case Number: 23NWCV01458    Hearing Date: January 30, 2024    Dept: C

Tiffany Packman vs Jennifer Jaye Fraser, et al.

Case No.: 23NWCV01458

Hearing Date: January 30, 2024 @ 9:30 AM

#3

Tentative Ruling

Defendant Jennifer J. Fraser’s (“Defendant”) Demurrer is taken OFF-CALENDAR.

Defendant to give notice.

Background

The instant lawsuit arises out of claims by Plaintiff Tiffany Packman ("Plaintiff”) relating to real property located at 10802 Petula Place, Cerritos, CA ("The Petula property"). The Petula property was held in multiple Living Trusts before being sold to Defendants Nicanor and Barbara Mansilla. Walter and Betty Hogg are the parents of Sheila Duke and the grandparents of Plaintiff Tiffany Packman and Defendant Jennifer Fraser (who are siblings).

Legal Standard

A party may amend the party's pleading once without leave of 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 is heard. (CCP § 472(a).) The amended pleading must be filed and served no later than the date for filing opposition to the demurrer or motion. The time for responding to an amended pleading is computed from the date of service of that pleading. (CCP § 472(a).)

The right to amend once without leave of court afforded by CCP § 472(a) is limited to the complaint as originally filed, i.e., the version of the complaint that commences the action. (Hedwall v PCMV, LLC (2018) 22 CA5th 564, 574–575.)

When the plaintiff files an amended complaint in response to a defendant's demurrer before the hearing on the demurrer, that hearing should be taken off calendar because the amended complaint supersedes the complaint to which the demurrer was directed. (People ex rel Strathmann v Acacia Research Corp. (2012) 210 Cal.App.4th 487, 505–506.)

On August 21, 2023, Defendant Jennifer Fraser filed her Demurrer with a Motion to Strike. On January 17, 2024, Plaintiff timely filed a First Amended Complaint instead of an Opposition to the Demurrer. 

Accordingly, the hearing on the Demurrer is taken off calendar.