Judge: Serena R. Murillo, Case: 22STCV18506, Date: 2023-04-14 Tentative Ruling

Case Number: 22STCV18506    Hearing Date: April 14, 2023    Dept: 29

TENTATIVE

Defendant’s motion to strike is TAKEN OFF CALENDAR as MOOT.  

Legal Standard

CCP section 472(a) states in relevant part: “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. …”  (Cal. Civ. Proc. Code § 472.)   

CCP section 1005(b) states in relevant part: “… All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” (Cal. Civ. Proc. Code § 1005.) 

The filing of an amended complaint supersedes the original pleading. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884.)  If an amended complaint is filed, the demurrer is taken off calendar as moot.  (See People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 505-06; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054.)  

Discussion

On March 1, 2023, Defendant filed the motion to strike portions of Plaintiff’s First Amended Complaint.  The present hearing on Defendant’s motion to strike is on April 14, 2023.   

On March 23, 2023, Plaintiffs filed the Second Amended Complaint (“SAC”).  Accordingly, the Court finds that Plaintiff timely filed the SAC nine court days before the present hearing, in compliance with CCP §§ 472(a) and 1005(b).  Therefore, the motion to strike is MOOT.

Conclusion

Based on the foregoing, Defendant’s motion to strike is TAKEN OFF CALENDAR as MOOT.