Judge: Michael Shultz, Case: 24STCV12994, Date: 2024-12-03 Tentative Ruling
Case Number: 24STCV12994 Hearing Date: December 3, 2024 Dept: 40
24STCV12994 Mediterranean Shipping Company USA, Inc., v. 26
Center Distribution, LLC,dba Dura Trucking
[TENTATIVE] ORDER
This
action arises from Defendant’s alleged failure to pay for Plaintiff’s
containers. Plaintiff alleges claims for breach of contract, open book account,
account stated, and unjust enrichment. On September 5, 2024, Defendant filed a
cross-complaint against Plaintiff alleging breach of contract and related
claims for Plaintiff’s failure to permit Cross-complainant to return empty
containers.
On
November 1, 2024, Cross-Defendant, Mediterranean Shipping Company, USA
(Cross-Defendant) filed a demurrer to the third, fourth, and fifth causes of
action alleged in the cross-complaint. Cross-complainant’s opposition was due
on Monday, November 18, 2024, nine court days before the scheduled hearing
date. (Code
Civ. Proc., § 1005, subd. (b).)
Cross-complainant
filed a first amended cross-complaint on November 18, 2024, the date its
opposition was due. (Code
Civ. Proc., § 472.) The
cross-complaint on which demurrer is taken is no longer operative. (Fireman's Fund Ins. Co. v. Sparks
Construction, Inc. (2004) 114 Cal.App.4th 1135, 1144. [“It is well established that an
amendatory pleading supersedes the original one, which ceases to perform any
function as a pleading.”].)
Accordingly,
the demurrer to the original cross-complaint is taken OFF CALENDAR.