Judge: Lee W. Tsao, Case: 23NWCV02104, Date: 2023-12-12 Tentative Ruling

Case Number: 23NWCV02104    Hearing Date: December 12, 2023    Dept: C

ANGEL A HERRERA vs GENERAL MOTORS LLC

Case No.: 23NWCV02104

Hearing: 12/12/23 at 10:30am

#12

Tentative

Defendant General Motors LLC’s (Defendant) Demurrer with Motion to Strike is DENIED and taken off calendar.

Opposing Party to give notice.

Background

On June 14, 2021, Plaintiff Angel A. Herrera (Plaintiff) purchased a 2021 GMC Sierra, VIN No.: 3GTP8CED3MG330981 (“Subject Vehicle”).

On July 17, 2023, Plaintiff sued Defendant, alleging breach of warranty claims under the Song-Beverly Consumer Warranty Act, as well as a common law fraud-fraudulent inducement-concealment claim.

On August 16, 2023, Defendant filed the Demurrer with the Motion to Strike. On November 17, 2023, Plaintiff filed a First Amended Complaint.

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.)

Discussion

On August 16, 2023, Defendant filed the Demurrer with the Motion to Strike. On November 17, 2023, Plaintiff filed the First Amended Complaint.  A hearing was set for the instant motion for December 12, 2023, making any opposition due on or before November 30, 2023.  Instead of filing an opposition, Plaintiff filed a First Amended Complaint, which is allowable under California law. (CCP § 472(a).)

Accordingly, the hearing is taken off calendar.