Judge: Teresa A. Beaudet, Case: 23STCV01046, Date: 2023-12-18 Tentative Ruling

Case Number: 23STCV01046    Hearing Date: February 22, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiffs Maria Luisa Trevejo (“Trevejo”) and MLT World, LLC (“MLT”) filed this action on January 17, 2023 against Defendant Stephen Belafonte (“Belafonte”). Trevejo and MLT filed the operative Second Amended Complaint on July 14, 2023, alleging causes of action for (1) breach of fiduciary duty, (2) intentional misrepresentation, (3) negligent misrepresentation, (4) conversion, (5) accounting, and (6) violation of usury laws.

On August 15, 2023, Belafonte filed a Cross-Complaint against Trevejo and MLT (jointly, “Cross-Defendants”), alleging causes of action for (1) breach of written contract, (2) breach of implied contract, (3) defamation, (4) intentional interference with prospective economic advantage, (5) negligent interference with prospective economic advantage, (6) money had and received, (7) accounting, (8) for account stated, and (9) for open book account.

Cross-Defendants demurred to the first, second, fourth fifth, sixth, seventh, eighth, and ninth causes of action of the Cross-Complaint. Cross-Defendants also moved to strike portions of the Cross-Complaint. No opposition to the demurrer or motion to strike was filed.  

On December 14, 2023, Belafonte submitted a First Amended Cross-Complaint (“FACC”).[1]

Discussion

As an initial matter, on December 18, 2023, the Court issued a minute order in this action providing, inter alia, as follows:

“As an initial matter, the Court notes that Code of Civil Procedure section 472, subdivision (a) provides that ‘[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. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.” Pursuant to Code of Civil Procedure section 1005, subdivision (b), ‘[a]ll papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days…before the hearing.’

Cross-Defendants’ demurrer to the Cross-Complaint and motion to strike portions of the Cross-Complaint were filed on September 28, 2023, and noticed for hearing on December 18, 2023. Belafonte did not file or serve the FACC at least nine court days prior to the December 18, 2023 hearing. Rather, Belafonte submitted the FACC on December 14, 2023, two court days before the December 18, 2023 hearing. The proof of service attached the FACC shows that it was also served on December 14, 2023.

The docket for this action does not yet show that Cross-Defendants have filed any objection to the FACC on the foregoing grounds. Thus, the Court will provide the parties with the opportunity to demonstrate whether they stipulated to Belafonte’s filing of the FACC. As set forth above, ‘[a] party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties.’ (Code Civ. Proc., § 472, subd. (a).).” (December 18, 2023 Minute Order at pp. 1-2.)

The Court’s December 18, 2023 minute order further provides that “Cross-Defendants may file and serve a declaration addressing the foregoing on or before January 22, 2024. Belafonte may file and serve a response thereto on or before January 29, 2024. On the Court’s own motion, the Hearing on Demurrer - with Motion to Strike (CCP 430.10) scheduled for 12/18/2023 is continued to 02/22/2024…”

The Court notes that the docket for this action does not show that any declarations were filed regarding the foregoing. In light of Cross-Defendants’ failure to file any objection to the FACC and the failure of the parties to file any declarations in accordance with the Court’s December 18, 2023 minute order, the Court concludes that the FACC is now the operative pleading and the demurrer and motion to strike are moot.

Cross-Defendants are ordered to give notice of this order.¿

DATED:  February 22, 2024                          ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court