Judge: Matthew C. Braner, Case: 37-2023-00011500-CU-BC-CTL, Date: 2023-09-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 07, 2023

09/08/2023  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2023-00011500-CU-BC-CTL MURRAY VS KA KANSAS LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants KA Kansas LLC and Prime Asset Management's demurrer is OVERRULED as moot.

Defendant's motion to strike is DENIED as moot.

'[T]he filing of an amended complaint renders moot a demurrer to the original complaint.' (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477 [citing Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054]; see also Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884 ['[A]n amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.'].) Here, Plaintiffs had the right to file a first amended complaint without leave of court so long as they did so within the time period for filing an opposition to Defendants' demurrer and motion to strike. (Code Civ.

Proc., § 472, subd. (a) ['A party may amend its pleading once without leave of the court at any time . . .

after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.'].) Plaintiffs filed and served a first amended complaint on August 28, 2023, which is only 8 court days prior to the hearing on Defendants' motions due to the holiday on September 4, 2023.

(Code Civ. Proc., § 1005, subd. (b); ROA #'s 19, 21.) Nonetheless, in the interests of judicial economy and to conserve party and court resources, the court will exercise its discretion to 'prescribe a shorter time' for the deadline for Plaintiffs to file opposition to Defendants' motions and will consider the FAC timely filed and served.

Accordingly, Defendant's demurrer is overruled and Defendant's motion to strike is denied.

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