Judge: Robert B. Broadbelt, Case: 21STCV46483, Date: 2023-04-07 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 21STCV46483    Hearing Date: April 7, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Walmart Inc., Walmart Stores, Inc., and Wal-Mart Associates, Inc. (joined by defendant Katherine Whatley)

RESPONDING PARTY:       Unopposed

(1)   Motion for Judgment on the Pleadings

MOVING PARTY:                Defendant Tiffani Medina-Khuu

RESPONDING PARTY:       Unopposed

(2)   Demurrer to Complaint

The court considered the moving and reply papers filed in connection with the motion for judgment on the pleadings and demurrer.  No opposition papers were filed.

REQUEST FOR JUDICIAL NOTICE

The court grants defendants Walmart, Inc., Wal-Mart Stores, Inc., Wal-Mart Associates, Inc., and Katherine Whatley’s request for judicial notice as to Exhibits 1 through 3.  (Evid. Code, § 452, subd. (d).)  The court denies the request as to Exhibit 4.

DISCUSSION

Plaintiff Romina Zerpa (“Plaintiff”) filed this action on December 21, 2021 against defendants Walmart, Inc., Wal-Mart Stores, Inc., Wal-Mart Associates, Inc. (“Walmart Defendants”), Tiffany (Doe), and Catherine (Doe).

Plaintiff filed an Amendment to Complaint on July 28, 2022, identifying defendant Tiffany (Doe) to be Tiffani Medina-Khuu (“Medina-Khuu”).

On October 17, 2022, (1) Walmart Defendants, joined by defendant Katherine Whatley, refiled their motion for judgment on the pleadings as to Plaintiff’s second, eighth, ninth, tenth, eleventh, and twelfth causes of action, and (2) Medina-Khuu refiled the demurrer to Plaintiff’s second, ninth, tenth, eleventh, and twelfth causes of action.

On March 24, 2023, Plaintiff filed a First Amended Complaint against Walmart Defendants, Medina-Khuu, and Katherine Whatley (collectively, “Defendants”).

In reply, Defendants request that the court sustain the demurrer, grant the motion for judgment on the pleadings, and strike the First Amended Complaint on the ground that Plaintiff was not permitted to file an amended pleading pursuant to Code of Civil Procedure section 472.

The court finds that Plaintiff properly filed the First Amended Complaint as to Medina-Khuu pursuant to Code of Civil Procedure section 472 because it was “filed and served no later than the date for filing an opposition to” Medina-Khuu’s demurrer.  (Code Civ. Proc., § 472, subd. (a) [a party may amend its pleading once without leave of court after a demurrer is filed if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer].)   

The court acknowledges that Walmart Defendants filed their answer to Plaintiff’s Complaint on February 17, 2022.  However, it does not appear that Medina-Khuu filed an answer to Plaintiff’s original Complaint, and Medina-Khuu does not argue that she filed an answer in her reply.  (Medina-Khuu Reply, p. 2:12-14 [“Defendants Walmart and Ms. Whatley answered Plaintiff’s Complaint] [emphasis added].)  Walmart Defendants and Whatley’s filing of their answers does not divest Plaintiff of the right to amend her complaint with respect to causes of action brought against demurring defendant Medina-Khuu.  (Barton v. Khan (2007) 157 Cal.App.4th 1216, 1220-1221.)  The court therefore finds that Plaintiff properly exercised her right to file an amended complaint pursuant to Code of Civil Procedure section 472 as to defendant Medina-Khuu.

The court finds that both Medina-Khuu and Walmart Defendants’ responsive pleadings are directed to a superseded Complaint and are therefore moot.  (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131 [“the filing of an amended complaint moots a motion directed to a prior complaint”].)

The court orders that (1) the motion for judgment on the pleadings filed by defendants Walmart, Inc., Walmart Stores, Inc., and Walmart Associates, Inc., and joined by defendant Katherine Whatley, is taken off calendar as moot, and (2) the demurrer filed by defendant Tiffani Medina-Khuu is taken off calendar as moot.

The court orders plaintiff Romina Zerpa to give notice of this ruling.

IT IS SO ORDERED.

DATED:  April 7, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court