Judge: Lee W. Tsao, Case: 23NWCV03318, Date: 2024-06-04 Tentative Ruling

Case Number: 23NWCV03318    Hearing Date: June 4, 2024    Dept: C

Antonio Banda vs PHH Mortgage Corporation, et al

Case No.: 23NWCV03318

Hearing Date: June 4, 2024 @ 10:30 a.m.

#8

Tentative Ruling

Defendants PHH Mortgage Corporation and Federal National Mortgage Corporation’s Demurrer is deemed MOOT and taken off calendar.

Plaintiff to give notice.

Background

This case arises from a home loan and a denial of a loan modification request. On October 16, 2023, Plaintiff Antionio Banda (“Plaintiff”) filed suit against Defendants PHH Mortgage Corporation and Federal Notional Mortgage Corporation (collectively “Defendants”). 

On November 2, 2023, Defendants filed the instant demurrer. On May 14, 2024, Plaintiff filed a First Amended Complaint (“FAC”).

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 November 2, 2023, Defendants filed the Demurrer.  Plaintiff’s opposition was due May 21, 2024.  Plaintiff filed the First Amended Complaint on May 14, 2024.    

Accordingly, the Demurrer is off-calendar as MOOT.