Judge: Melvin D. Sandvig, Case: 21CHCV00316, Date: 2022-09-19 Tentative Ruling

Case Number: 21CHCV00316    Hearing Date: September 19, 2022    Dept: F47

Dept. F47

Date: 9/19/22

Case #21CHCV00316

DEMURRER TO CROSS-COMPLAINT

Demurrer filed on 6/30/22.

MOVING PARTY: Cross-Defendant Cari McCarthy

RESPONDING PARTY: Cross-Complainant Krupe Investments fka Krupe Industries, Inc.

NOTICE: ok

RULING: The demurrer is placed off calendar as moot.  However, Krupe is granted 20 days leave to file and serve a Second Amended Cross-Complaint. 

On 6/30/22, Cross-Defendant Cari McCarthy (McCarthy) filed and served the instant demurrer to the Cross-Complaint of Krupe Investments Inc. formerly doing business as Krupe Industries, Inc. (Krupe).  The demurrer addresses the original Cross-Complaint filed by Krupe on 11/15/21.  (See Arnold Decl. ¶3, Ex.B).  A First Amended Cross-Complaint was filed on 12/14/21.  The declaration from McCarthy’s attorney states that a copy of the Cross-Complaint served on McCarthy is attached to his declaration as Exhibit B and Exhibit B is a copy of the original Cross-Complaint.  (Arnold Decl. ¶3). 

On 9/6/22, Krupe filed and served an opposition to the demurrer wherein Krupe states in the notice of opposition that “Cross-Defendant addressed a complaint which is not the operative complaint.  Cross-Defendant addresses a complaint which is not the FAC.”  (See Opposition, p.2:6-7).  Presumably, Krupe meant that the demurrer addresses the original Cross-Complaint and not the First Amended Cross-Complaint.  Confusingly, on 9/14/22, Krupe filed and served a document titled “Reply and Supplemental Points and Authorities In Opposition to Plaintiff/Cross-Defendant Reply to Cross-Complainant’s Opposition to the Demurrer.”  (Reply and Supplemental Opposition).   In this document, Krupe states that “after filing the opposition to Plaintiff’s within demurrer, Cross complainant herein discovered that Plaintiffs demurrer was made to a non-operative complaint which was amended prior to the within demurrer filed and therefore is irrelevant and must be overruled.” (emphasis in original) (See Reply and Supplemental Opposition, p.2:6-10).  However, as noted above, Krupe seemingly made this observation in the original opposition. 

Further confusing matters, on 9/15/22, McCarthy filed and served a “Notice of Errata Cross-Defendant Cari McCarthy Demurrer to [First Amended] Cross-Complaint…” which indicates that the demurrer mistakenly referred to the cross-complaint when it should have referred to the First Amended Cross-Complaint. (emphasis in original).  The notice of errata goes on to identify some changes to the demurrer.  The declaration of attorney Arnold filed in support of the notice of errata makes the incomplete statement: “I was notified by opposing counsel in their filing titled “REPLY AND SUPPLEMENTAL POINTS IN OPPOSITION TO PLAINTIFF/CROSS- DEFENDANT REPLY TO CROSS COMPLAINANT’S OPPOSITION TO THE DEMURRER” filed and served yesterday September 14, 2022.”  (See Arnold Errata Decl. ¶2).  It is not clear what attorney Arnold was notified of by the Reply and Supplemental Opposition because, as noted above, the original opposition filed and served on 9/6/22 also referenced the fact that the demurrer addressed a non-operative pleading (i.e., the original cross-complaint).  However, McCarthy did not file a reply/response/notice of errata to the original opposition. 

In the Reply and Supplemental Opposition Krupe indicates that it “previously offered to file an amended complaint, to which plaintiff did not respond and are still prepared to do so, should the court decide to sustain the demurrer or any part thereof.”  (See Rasmussen Decl. ¶5).  Presumably, this means that Krupe is willing to file a Second Amended Cross-Complaint. 

Based on the foregoing, the Court finds that the demurrer, which addresses a non-operative pleading, is moot and cannot be cured by the late filed and served Notice of Errata which did not provide Krupe with sufficient time to respond.  However, based on Krupe’s apparent willingness to further amend its pleading, the Court finds that it is in the interests of justice and judicial economy to allow Krupe to further amend its cross-complaint.  Therefore, Krupe is granted 20 days leave to file and serve a Second Amended Cross-Complaint.  

In future amended pleadings, challenges thereto and/or responses to such challenges, the parties must clearly identify which pleading is being addressed.  In other words, clearly identify whether it is the complaint or cross-complaint and the number of any amendment (i.e., Krupe repeatedly and confusingly identifies its cross-complaint as its complaint and McCarthy failed to identify the operative pleading in the demurrer).