Judge: Mark H. Epstein, Case: 22SMCV00697, Date: 2023-04-05 Tentative Ruling

Case Number: 22SMCV00697    Hearing Date: April 5, 2023    Dept: R

The court is reluctantly inclined to GRANT the motion for leave to amend.  The court is well aware that this will be plaintiff’s fourth attempt to state a cause of action and that it is being sought in the teeth of a demurrer.  But that said, leave to amend is freely given and it is an abuse of discretion to deny leave to amend (should the demurrer be sustained) where the plaintiff has articulated a way to cure the defect.  However, plaintiff has conceded in its moving papers that this is the best it can do.  Given that it is that concession that causes the court to grant the motion, plaintiff will be judicially estopped from claiming that it ought to be given leave to amend again should defendant demur and should the demurrer be sustained on anything other than a technical ground. 

Because leave to amend is granted, the current demurrer is now MOOT.

The proposed amended complaint is deemed filed as of today.  Defendant has 30 days to answer or otherwise respond to it.  The case management conference is ADVANCED TO THIS DATE AND CONTINUED TO July 10, 2023 at 8:30.