Judge: Robert B. Broadbelt, Case: 21STCV47392, Date: 2023-08-17 Tentative Ruling

Case Number: 21STCV47392    Hearing Date: August 17, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Plaintiff Elizabeth Kaplan

RESPONDING PARTIES:     Defendants Michael Lee Cohen and Michael L. Cohen, a Professional Law Corporation

Motion for Summary Adjudication

The court considered the moving, opposition, and reply papers filed in connection with this motion.

EVIDENTIARY OBJECTIONS 

The court declines to rule on the evidentiary objections filed by the parties because the objections are directed to evidence that is not material to the court’s disposition of this motion.  (Code Civ. Proc., § 437c, subd. (q).)

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  For the purposes of motion for summary judgment and summary adjudication, “[a] plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(1).)  “Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(1).)  “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

In their opposition papers, defendants Michael Lee Cohen and Michael L. Cohen, a Professional Law Corporation (“Defendants”) argue that this motion for summary adjudication of the first cause of action for declaratory relief in the First Amended Complaint is moot because, after filing the motion, plaintiff Elizabeth Kaplan (“Plaintiff”) filed a Second Amended Complaint.

Plaintiff filed the First Amended Complaint in this action on January 13, 2022.  Three months later, on April 25, 2022, Plaintiff filed the pending motion for summary adjudication on the first cause of action for declaratory relief.  Thereafter, on October 24, 2022, Plaintiff and Defendants stipulated, and the court ordered, that Plaintiff shall have leave to file a Second Amended Complaint.  Pursuant to the parties’ stipulation and the court’s order, Plaintiff filed the operative Second Amended Complaint in this action on November 2, 2022.  Thus, Defendants contend that Plaintiff’s motion is moot.  (Opp., pp. 1:16-17, 13:21-14:3.)

In reply, Plaintiff argues that (1) this motion is not moot since the declaratory relief causes of action as alleged in the First Amended Complaint and the Second Amended Complaint are identical, and (2) denying this motion “would accomplish nothing other than requiring Plaintiff to refile this motion” and would be inefficient for the court and the parties.

First, the court finds that Plaintiff’s motion for summary adjudication, directed to the first cause of action alleged in the superseded First Amended Complaint, is moot.  That the causes of action for declaratory relief might be identical is immaterial to the court’s determination that the First Amended Complaint has been superseded by the filing of the Second Amended Complaint.  (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131 [“Because there is but one complaint in a civil action [citation], the filing of an amended complaint moots a motion directed to a prior complaint”] [internal citations omitted].) 

Second, the court notes that Plaintiff has cited Virgin v. State Farm Fire & Casualty Co. (1990) 228 Cal.App.3d 1372 in support of her argument that denying the motion on this ground would be inefficient and would cause duplicative administration. 

The court finds that the facts presented in Virgin are distinguishable from those presented here.  In Virgin, the issue presented was “whether summary judgment is proper where homeowners sue for bad faith denials of insurance claims before the claims are denied but the claims have been denied by the time the summary judgment motion is heard.”  (Virgin, supra, 218 Cal.App.3d at pp. 1373, 1375 [“The issue here is whether summary judgment is proper when some of the facts underlying the allegations did not exist when the complaint was filed but do exist when the summary judgment motion is heard”].)  On that issue, the court determined that the defect in the pleadings “should be disregarded since it no longer existed at the time the [defendants] made their motion for summary judgment.”  (Id. at p. 1376.)  Further, although the court “note[d] that upholding the grant of summary judgment based on this technical ground would accomplish nothing other than requiring the homeowners to refile their action[,]” this assertion is inapplicable to the facts presented here, which concern Plaintiff’s filing of an amended complaint, and do not concern a defect that existed at the time Plaintiff’s complaint was filed but had since been remedied by the time the motion for summary adjudication was filed.  (Id. at pp. 1376-1377.)  

Thus, the court finds that Plaintiff’s motion for summary adjudication is moot because it requests that the court grant summary adjudication on the first cause of action for declaratory relief as alleged in the First Amended Complaint, which has been superseded by Plaintiff’s filing of the Second Amended Complaint on November 2, 2022.  (April 25, 2022 Notice of Motion, p. 2:8-11 [filed when First Amended Complaint was operative]; January 23, 2023 Amended Notice of Motion, p. 2:10-13 [stating that the motion for summary adjudication is based on, inter alia, “Ms. Kaplan’s First Amended Complaint on file”] [italics added].)  The court also notes that the parties do not argue that they stipulated or agreed to construe this motion to be directed to the Second Amended Complaint, and the court has received no such stipulation. 

“[O]nce an amended complaint is filed, it is error to grant summary adjudication on a cause of action contained in a previous complaint.”  (State Compensation Ins. Fund, supra, 184 Cal.App.4th at p. 1131.)  The court therefore denies Plaintiff’s motion for summary adjudication, without prejudice to Plaintiff’s filing a new motion for summary adjudication that is directed to the Second Amended Complaint.

ORDER

The court denies plaintiff Elizabeth Kaplan’s motion for summary adjudication.

The court orders defendants Michael Lee Cohen and Michael L. Cohen, a Professional Law Corporation to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 17, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court