Judge: Mark H. Epstein, Case: 22SMCV00383, Date: 2023-03-07 Tentative Ruling
Case Number: 22SMCV00383 Hearing Date: March 7, 2023 Dept: R
The Court sees that First Amended Complaint was filed on
March 2, 2023. Cross-defendants object
to that filing as untimely. Cross-defendants
are correct; a cross-complainant may amend in response to a demurrer by right
only before the time that the opposition expires. The opposition here was due on February 22,
2023, but the amendment was filed on March 2.
Cross-defendants do not stipulate.
That said, the court will exercise its discretion to allow the untimely filing and, as such, the demurrer is MOOT, as is the motion to strike. However, the court will consider the amendment to have been forced by the demurrer. In other words, this will count as the second attempt to plead properly and will be conclusively considered to have been filed in an attempt to cure the shortcomings set forth in the demurrer. The reason for this is that the court notes that generally it would be an abuse of discretion to bar leave to amend to a first pleading, and under these circumstances, it seems far more efficient to proceed this way than to rule on the demurrer, potentially sustain it, and then grant leave to amend. The court is NOT saying that the demurrer would have been sustained; the court is not ruling at all on the merits. What the court is saying is that if there is a demurrer to this document, and if that demurrer is sustained, it the court will view what is now the operative complaint as having been drafted to cure the problems that were identified in the instant demurrer (whether it turns out they need curing or not).
The court also notes that the amended cross-complaint does attempt to cure some of the problems specified in the demurrer. For example, as to the individual’s liability, it is now expressly based on alter ego. The court is not passing on the merits, but alter ego is a recognized way of holding the owner of a jural entity liable for the torts committed by that entity.