Judge: Ralph C. Hofer, Case: 24NNCV01054, Date: 2024-12-13 Tentative Ruling

Case Number: 24NNCV01054    Hearing Date: December 13, 2024    Dept: D

TENTATIVE RULING

Calendar:    5
Date:          12/13/2024 
Case No: 24 NNCV01054 Trial Date: None Set 
Case Name: Bakman Residence, LLC, et al. v. 4181 Bakman Avenue, LLC, et al.

DEMURRER
MOTION TO QUASH SERVICE OF SUMMONS
 
Moving Party:            Demurrer
Defendants 4181 Bakman Avenue, LLC and Garo Bedrossian 
Quash Service
Specially Appearing Defendants JohnHart Real Estate
and Rafael Gevorkian 

Responding Party: Plaintiffs Bakman Residence LLC, Nicole A. and Donna L.   


RELIEF REQUESTED:
Demurrer
Sustain demurrer to first through fifth, ninth, tenth, and thirteen through fifteenth causes of action of plaintiff’s complaint

Motion to Quash
Order setting aside default and any default judgment against specially appearing defendants JohnHart Real Estate and Rafael Gevorkian, order quashing service of summons and dismissing action 

ANALYSIS:
Motion to Quash
Plaintiffs have filed an opposition to the Motion to Set Aside Default and Quash Service of Summons, arguing that the motion is moot, representing that plaintiffs filed a First Amended Complaint on December 2, 2024.  Plaintiffs argue that this filing supersedes the original complaint, and that by filing the FAC, the original complaint was superseded in its entirety, including any service of that pleading or defaults thereon.  

The file shows that the First Amended Complaint which is evidently relied upon was rejected for filing on December 2, 2024, but was evidently resubmitted, and filed on December 4, 2024.    

The court agrees that the motion to quash is directed to the original complaint, which is  superseded by the filing of the First Amended Complaint.  See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884; see also State Compensation Insurance Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130-1131 (“Because there is but one complaint in a civil action, the filing of an amended complaint moots a point directed to a prior complaint.” (citations omitted).  The points concerning service are directed to the prior complaint, so that if the FAC is in fact filed, the motion to quash would be rendered moot.  

The filing, if the amendments are as to matters of substance and not mere matters of form, would also open up the defaults, and the amended pleading would be required to be served on the defaulted defendants by the same means as service of summons.  Engebretson & Co., Inc. v. Harrison (1981) 125 Cal.App.3d 436, 440-443.  The court has reviewed the pleadings, and finds that the amendments include those as to matters of substance, and notes that the opposition appears to concede the amendments involve matters of substance and require entirely new service by arguing in the opposition that the defaults would be ineffective and service requirements would begin anew.  

The motion is accordingly deemed moot. 

Plaintiffs also argue that the motion is improper in any case because it was never served.  

Under CCP section 1005(b):
“Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” 

The court has confirmed that the copy of the motion filed with the court does not include a proof of service showing service of the motion to quash upon any other party to this action.   There accordingly has not been sufficient notice of this motion, and even if it were not moot, the court could not hear it.   

Demurrer
As discussed above, it has been represented by plaintiffs that they filed a First Amended Complaint in this action on December 2, 2024, which was after the filing of the demurrer, but on the day opposition to the demurrer would have been due.  However, that FAC was not in fact  accepted for filing by the court on the due date.  Instead, the FAC was refiled, and filed by the court on December 4, 2024.    

Under CCP § 472:
“(a) A party may amend its pleading once without leave of the court at any time before the answer or demurrer is filed, or after a demurrer is filed but before the demurrer is heard if the amended complaint, cross-complaint, or answer is filed and served no later than the date for filing an opposition to the demurrer….”

Under CCP §1005(b):
“All papers opposing a motion…shall be filed with the court and a copy served on each party at least nine court days… before the hearing.” 

Nine court days before the hearing date on December 13, 2024 was December 2, 2024.  The amended pleading was filed on December 4, 2024, two court days late, so is not timely.  However, the court will hear argument concerning whether the court will nevertheless treat the demurrer as moot, as the filing of an amended pleading suggests the demurrer has some merit, and the court has not yet worked up the demurrer on its substance.  

RULING:
Specially Appearing Defendants JohnHart and Rafael Gevorkian’s Motion to Set Aside Default and Default Judgment, if Entered, and Quash Service of Summons (CCP section 418.10) is MOOT in light of the filing on December 4, 2024 of a First Amended Complaint, which supersedes the original complaint, opens up the defaults, and requires service in the manner of service of summons. 


Demurrer by Defendants 4181 Bakman Avenue, LLC and Garo Bedrossian is taken off calendar as MOOT in light of the filing on December 4, 2024 of a First Amended Complaint despite plaintiffs’ failure to comply with CCP § 472, as the amended pleading was not successfully filed no later than the date for filing an opposition to the demurrer.  The parties are reminded of their obligations under CCP § 430.41 (a) in connection with any further challenge to the amended pleading (“If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.”). 


 DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 
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