2013-00138061-CU-CL

Marmi Bruno Zanet vs. Medimer Marble & Granite

Nature of Proceeding:   Hearing on Demurrer

Filed By:  Seibert, Ethan H.

Plaintiffs and Cross-Defendants Marmi Bruno Zanet SRL (“Marmi SRL”) and Marmi
Bruno Zanet USA, Inc.’s (“Marmi USA”) (collectively, “Plaintiffs”) demurrer to the First
Amended Cross-Complaint (“FACC”) of Medimer (“Medimer”) is CONTINUED to
August 18, 2014, at 2:00 p.m. in this Department.

The Court’s electronic Register of Actions (“ROA”) indicates that Medimer filed its
FACC on March 4, 2014, by placing the document in the Court’s drop box at 4:23 p.m.
that day.  (ROA No. 31.)  However, the ROA also appears to indicate that the FACC
was “rejected” by the Clerk of the Court when the filing was processed on March 6,
2014, on grounds that an answer had already been filed with respect to Medimer’s  original cross-complaint, such that leave of court was required for filing the FACC.
(ROA No. 29.)  The Court’s review of the ROA confirms the Clerk’s stated reason for
rejecting the FACC, as it appears that Cross-Defendant Tamara Petrick did indeed file
an Answer to Medimer’s original cross-complaint on January 13, 2014.  (ROA No. 28.)

It does not appear to the Court from the ROA that Medimer ever attempted to refile the
apparently rejected FACC, or has since attempted to file a motion seeking leave of
court to do so.  Instead, all parties appear to have proceeded with complete briefing
regarding Plaintiffs’ demurrer to the FACC, which is set to be heard on June 30, 2014.
However, the Court cannot clearly make determinations upon the adequacy of the
FACC’s allegations until it is clear that the FACC was properly filed and is properly
before the Court.

The Court notes that Code of Civil Procedure § 472 permits a party to amend its
pleading as of right and without a court order “at any time before the answer or
demurrer is filed,” or “after demurrer and before the trial of the issue of law thereon.”
Outside those circumstances, leave of court must be obtained prior to amendment.  (
Asia Investment Co. v. Borowski (1982) 133 Cal.App.3d 832, 840 (“The right of  a
plaintiff to amend his complaint under the provisions of section 472 of the Code of Civil
Procedure is extended only up to the time the defendant’s answer is filed. Once the
defendant’s answer is filed, the plaintiff’s right to amend as a matter of course is
gone.”).)  On the other hand, at least one appellate court has held that “one
defendant’s filing of an answer” does not necessarily divest a “plaintiff of the right to
amend the complaint with respect to the causes of action brought against other
demurring defendants.”  (Barton v. Khan (2007) 157 Cal.App.4th 1216, 1221.)

Regardless of whether the Clerk of the Court properly rejected the FACC, however,
the ROA indicates that it was nevertheless “rejected” and that no re-filing was
attempted thereafter.  Accordingly, the Court cannot presently apply Barton to permit
the rejected FACC.  It is not at all clear that the Court can retroactively “undo” the
Clerk’s rejection of the FACC.

The Court notes that, given the substantive briefing before it challenging the FACC’s
allegations, all parties have apparently proceeded on the assumption that the FACC
was properly filed.  No party has argued that the amendments to the original cross-
complaint appearing in the FACC are prejudicial or that the amendments were
procedurally improper.  The Court therefore fully expects that the parties can promptly
reach a stipulation permitting the filing of the FACC and seek the Court’s approval
thereon; the Court clarifies, however, that its expression of confidence in this regard is
not an order requiring such a stipulation.

The Court is aware that perhaps the ROA does not tell the whole story with respect to
the filing of the FACC.  The ROA’s entries do not always appear chronologically
numbered based on date, and here, although the Clerk rejected the FACC on March 6,
2014 (ROA No. 29), that entry appears beneath the entry reflecting the FACC’s filing
on March 4, 2014 (ROA No. 31).  Exacerbating the confusion, the ROA also
erroneously lists “Marmi Bruno Zanet SRL” and other parties as the filing parties              associated with the FACC filed on March 4, 2014, when the actual text of that filing
reveals it to be Medimer’s FACC, not Marmi SRL’s.

In any event, however, the Court declines to address a motion targeting allegations
within a filing that appears to have been rejected.  The Court declines to resolve the
demurrer to the FACC on its merits unless and until it is clear that the subject pleading
is in fact properly on file and properly before the Court.  Accordingly, this matter is
CONTINUED to August 18, 2014 as described above, so as to permit the parties to
reach a stipulation regarding the amendments in the FACC, or to address the
procedural propriety of the FACC and/or to seek leave to file the FACC by way of
motion.  Any such stipulation and/or motion must be filed and served on or before July
24, 2014.

The Court notes that it has CONTINUED the hearing on this matter instead of dropping
it completely from the calendar, with the goal of maximizing efficiency for the court,
counsel, and litigants in this case.  However, the matter may ultimately be dropped
from the continued hearing date if circumstances so warrant.

The Court notes that moving party has indicated the incorrect address in its notice of
motion.  The correct address for Departments 53 and 54 of the Sacramento County

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Superior Court is 800 9   Street, Sacramento, California  95814.  Moving party shall
notify responding party(ies) immediately.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or other notice is required.