2013-00154687-CU-BT

Brian A Clarke vs. Jaskaran S Boparai

Nature of Proceeding:      Motion to Set Aside Courts Ruling Dated 4/14/14

Filed By:    Arias, P. Elizabeth

Plaintiff Brian Clarke’s motion to set aside the Court’s April 14, 2014, ruling on the
demurrers filed by defendants is granted.

Defendants Harjinder Bal and Irwinjeet Sekhon-Bal’s joinder in Gursimat Sekhon’s
opposition is granted.

On April 11, 2014, this Court issued tentative rulings sustaining defendants Gursimrat
Sekhon’s and Jaskaran Bopariari, et al’s demurrers to Plaintiff Brian Clarke’s
complaint, which were set for hearing on April 14, 2014, with leave to amend.  The
tentative rulings indicated that the demurrers were unopposed which was construed as
a concession on the merits.  As no party called for argument the rulings became final.

Unbeknownst to the Court and defendants, Plaintiff filed a first amended complaint on
April 11, 2014.  Plaintiff now seeks to set aside the April 14, 2014, rulings on the basis
that the filing of the FAC rendered the demurrers moot.  Plaintiff is correct.

In opposition, Defendant simply argue that while Plaintiff’s counsel put Defendants on
notice that Plaintiff intended to file a FAC, contrary to Plaintiff’s counsel’s statements,
there was never an agreement to drop the demurrers on condition that an FAC was
filed and Plaintiff’s motion fails to provide proof that the FAC was filed before the
tentative rulings on the demurrers became final.

“Any pleading may be amended once by the party, and without costs…after a
demurrer has been filed and before the trial on the issue of law thereon, by filing the
same as amended and serving a copy on the adverse party.”  (CCP § 472.)  Case law
makes clear that CCP § 472 “grants a plaintiff the right to file an amended complaint in
response to a demurrer at any time before the hearing on the demurrer.”  (People ex
th
rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4   487, 505.)  “The
filing of the first amended complaint rendered [the defendant]’s demurrer moot since
an ‘amendatory pleading supersedes the original one, which ceases to perform any               function as a pleading.’ [citations omitted].”  (Sylmar Air Conditioning v. Pueblo
th
Contracting Services, Inc. (2004) 122 Cal.App.4   1049, 1054.) Thus, once an
amended complaint is filed, it is error for the court to determine a cause of action
contained in a previous complaint. State Compensation Ins. Fund v. Superior Court,
(2010) 184 Cal. App. 4th 1124, 1129-1131.

Here, while Defendants argue that Plaintiff has no proof that the FAC was filed prior to
4:00 p.m. on April 11, 2014 (e.g., prior to the tentative ruling becoming final), the
Court’s records in CCMS show that it was.  Indeed, the Court’s records show that the
FAC was filed with the Court at 1:53 p.m. on April 11, 2014.  Thus, the filing of the FAC
before the tentative ruling became final rendered Defendants’ demurrers moot.  While
Plaintiff should have informed the Court that he had filed a FAC thereby saving the
Court and Defendants the time in having to address the instant motion, the law is clear
that the FAC mooted the demurrers.  Thus, the April 14, 2014, rulings on Defendants’
demurrers are set aside as there was nothing for the Court to rule upon given the fact
that the FAC superseded the complaint to which the demurrers were interposed.

Plaintiff’s request for sanctions against Defendants for refusing to stipulate to set aside
the April 14, 2014 orders and forcing him to file the instant motion is denied.  Plaintiff’s
cites no legal basis for such an award.  Plaintiff’s attempt to cite to CCP § 575.2 (which
permits sanctions for noncompliance with local rules) for the first time in reply.  Indeed,
§ 575.2 makes clear that no sanctions may be imposed pursuant that section “without
prior notice to, and an opportunity to be heard…”  Given the failure to raise this section
until reply, Plaintiff did not provide the requisite notice.

Finally, the Court notes that Plaintiff refers to an opposition by attorney Bolanos on
behalf of defendants Jaskaran Boparai, et al.  The Court’s files do not reflect that such
an opposition was filed.

The April 14, 2014, orders sustaining Defendants’ demurrers are hereby set aside.
The FAC filed before the hearing on the demurrers pursuant to CCP § 472 rendered
the demurrers moot.

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