Judge: Melvin D. Sandvig, Case: 22CHCV00110, Date: 2022-09-13 Tentative Ruling

Case Number: 22CHCV00110    Hearing Date: September 13, 2022    Dept: F47

Dept. F47

Date: 9/13/22

Case #22CHCV00110

DEMURRER TO THE ORIGINAL COMPLAINT

Demurrer filed on 5/4/22.

MOVING PARTY: Defendants Sergio Maldonado and On the Road Insurance Services

RESPONDING PARTY: Plaintiff North American Machinery Movers, Inc.

NOTICE: ok

Demurrer is to the 3^rd cause of action:

            1.  Professional Negligence

            2.  Breach of Fiduciary Duty

            3.  Breach of Implied Covenant of Good Faith and Fair Dealing

RULING: The demurrer is sustained with leave to amend. 

On 2/17/22, Plaintiff North American Machinery Movers, Inc. filed this action against Defendants Sergio Maldonado and On the Road Insurance Services for: (1) Professional Negligence, (2)  Breach of Fiduciary Duty and (3) Breach of Implied Covenant of Good Faith and Fair Dealing.

After Plaintiff’s counsel failed to respond to Defendants’ meet and confer efforts, on 5/4/22, Defendants filed and served Plaintiff with the instant demurrer to the 3^rd cause of action for Breach of Implied Covenant of Good Faith and Fair Dealing.  (See Farrow Decl.). 

On 9/1/22, Plaintiff filed a First Amended Complaint.  CCP 472(a) provides:

A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or 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. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.  (emphasis added)

An opposition to the demurrer was due at least 9 court days before the 9/13/22 hearing date, or on or before 8/30/22.  CCP 1005(b).  There is no evidence that the parties stipulated to the filing of the First Amended Complaint after 8/30/22.  Therefore, the filing of the First Amended Complaint on 9/1/22 is untimely under CCP 472(a).  The Court finds that the filing of the First Amended Complaint essentially concedes the merits of the demurrer.  Therefore, the demurrer is sustained with leave to amend.

The Court notes that there is no proof of service attached to the First Amended Complaint nor has a proof of service been separately filed.  If Plaintiff has not served the First Amended Complaint on Defendants, it is ordered to do so forthwith and file proof of such service with the Court on or before 9/14/22.