Superior Court of California

County of Los Angeles

ARTUR SARGSYAN, etc.,

Plaintiff,

vs.

TT CLUB MUTUAL INSURANCE LIMITED, etc., et al.,

Defendant(s).

Case No.: 22STCV20793

DEPARTMENT 45

[TENTATIVE] RULING

Complaint Filed: 06/24/22

Trial Date: 05/19/25

Hearing date: March 1, 2024

Moving Party: Cross-Defendant Luda Express, Inc. (“Luda”)

Responding Party: Unopposed

Demurrer to Cross-Complaint

The court has considered the moving papers. No opposition or reply papers were filed.

The demurrer filed by Cross-Defendant Luda Express, Inc. to the cross-complaint filed by PAF Insurance Services, LLC is MOOT and is taken OFF-CALENDAR due to the filing of a First Amended Cross-Complaint by PAF Insurance Services, Inc.

Background

This is an action arising from lost or stolen sports trading cards. On June 24, 2022, Plaintiff Artur Sargsyan, an individual doing business as Frontline Sports (“Plaintiff”) filed a complaint against Defendants TT Club Mutual Insurance Limited (“TTCMI”), PAF Insurance Services, LLC (“PAF”), and DOES 1 through 20, inclusive, alleging causes of action for: (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) reformation, (4) professional negligence, (5) negligent misrepresentation, (6) tort of another, and (7) violation of Business and Professions Code section 17200.

On September 2, 2022, Defendant TTCMI filed an answer to the complaint.

On October 2, 2022, Defendant PAF filed an answer to the complaint.

On October 27, 2022, Defendant TTCMI filed a cross-complaint against Defendant PAF, Total Quality Logistics, Luda Express, Inc. (“Luda”), and Roes 1 through 20, alleging causes of action for: (1) violation of the Carmack Amendment, (2) equitable/comparative/implied indemnity, (3) contribution, and (4) declaratory relief.

On December 14, 2022, Defendant PAF filed a cross-complaint against Defendant TTCMI, Luda, and Total Quality Logistics alleging causes of action for: (1) equitable indemnity, (2) apportionment of fault/contribution, and (3) declaratory relief.

On March 13, 2023, Luda filed and served the instant demurrer to the cross-complaint filed by Defendant PAF.

On January 3, 2024, Defendant PAF filed and served a First Amended Cross-Complaint (“FAXC”) against Defendant TTCMI and Luda alleging causes of action for: (1) violation of the Carmack Amendment, (2) equitable indemnity, (3) apportionment/contribution, and (4) declaratory relief.

On January 5, 2024, pursuant to a court order, the Court continued the hearing on Luda’s demurrer from January 17, 2024 to March 1, 2024.

The demurrer is unopposed. Any opposition to the demurrer was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading sought to be demurred to, in person or telephonically or by video conference, for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41, subd. (a).) An insufficient meet and confer process concerning a demurrer is not grounds to sustain or overrule a demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).)

Counsel for Luda, Frank X. Dipolito (“Dipolito”), declares that on March 1, 2023, he spoke with counsel of record for Defendant PAF via telephone “of Luda’s intent to file a demurrer to PAF’s Cross-Complaint on the grounds that each cause of action alleged therein against Luda is preempted by Federal law. Mr. Scroggins requested a written summary of [Luda’s] position.” (Dipolito Decl., ¶ 4.) On March 1, 2022, Dipolito e-mailed a meet and confer letter to Luda’s counsel detailing the factual and legal basis for Luda’s contemplated demurrer and requesting that Defendant PAF dismiss its cross-complaint against Luda without prejudice. (Id., ¶ 5.) To date, Dipolito declares that his office has not received a response to the meet and confer letter. (Id., ¶ 6.)

The Court finds that the meet and confer requirement has not been met as there was not a meet and confer discussion in person, by telephone, or by video conference. However, the Court will assess the demurrer. As will be explained below, the demurrer is moot due to the filing of the FAXC.

Legal Standard

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Ibid.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) In assessing a demurrer, a court can consider facts in exhibits attached to the complaint. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) Accordingly, “[w]hether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609-10.) A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc. § 430.10(e).) Although courts construe pleadings liberally, sufficient facts must be alleged to support the allegations plead to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.)

Discussion

The Filing of the FAXC

“An amended [cross-complaint] supersedes all prior [cross-complaints].” (Malear v. State (2023) 89 Cal.App.5th 213, 221, internal quotations omitted.) Where an amended cross-complaint is filed “the original [cross-complaint] ceases to have any effect either as a pleading or as a basis for judgment.” (Ibid.) “The amended [cross-complaint] furnishes the sole basis for the cause of action, and the original [cross-complaint] ceases to have any effect either as a pleading or as a basis for judgment.” (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477.) “[T]here is but one [cross-complaint] in a civil action . . . [and] the filing of an amended [cross-complaint] moots a motion directed to a prior [cross-complaint].” (Ibid.) “A party may amend its pleading once without leave of court . . . after a demurrer . . . is filed but before the demurrer . . . is heard . . . if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer.” (Code Civ. Proc., § 472.)

Here, Luda’s demurrer is directed at the initial cross-complaint filed by Defendant PAF. Defendant PAF, however, has filed the FAXC which is now its operative cross-complaint. The initial cross-complaint filed by Defendant PAF no longer has any effect as a pleading. Thus, the demurrer filed by Luda is MOOT and is taken OFF-CALENDAR.

It is so ordered.

Dated: March 1, 2024

_______________________

ROLF M. TREU

Judge of the Superior Court