Figuerola v. Nationwide Agribusiness Ins. Co.
Case No: 18CV05839
Hearing Date: Tue Jul 23, 2019 8:30

Nature of Proceedings: Demurrer

Rossana Figuerola, as trustee of the Figuerola Family Trust (“plaintiff”), filed her complaint for damages for breach of insurance agreement and insurance bad faith against defendants Nationwide Agribusiness Insurance Company and Hometown Insurance Services (“Hometown”) on November 28, 2018. It was served on defendant Hometown by substituted service on April 24, 2019. Hometown filed its demurrer on June 21, 2019. On July 1, 2019, the court received plaintiff’s first amended complaint, which includes the same causes of action as the original complaint and added a cause of action titled breach of duty against Hometown.

CCP §472(a) provides that “A party may amend its pleading once without leave of the court at any time before the answer or demurrer is filed, or after a demurrer is filed but before the demurrer is heard if the amended complaint, cross-complaint, or answer is filed and served no later than the date for filing an opposition to the demurrer. A party may amend the complaint, cross-complaint, or answer after the date for filing an opposition to the demurrer, upon stipulation by Rossana Figuerola, as trustee of the Figuerola Family Trust (“plaintiff”), filed her complaint for damages for breach of insurance agreement and insurance bad faith against defendants Nationwide Agribusiness Insurance Company and Hometown Insurance Services (“Hometown”) on November 28, 2018. It was served on defendant Hometown by substituted service on April 24, 2019. Hometown filed its demurrer on June 21, 2019. On July 1, 2019, the court received plaintiff’s first amended complaint, which includes the same causes of action as the original complaint and added a cause of action titled breach of duty against Hometown.

CCP §472(a) provides that “A party may amend its pleading once without leave of the court at any time before the answer or demurrer is filed, or after a demurrer is filed but before the demurrer is heard if the amended complaint, cross-complaint, or answer is filed and served no later than the date for filing an opposition to the demurrer. A party may amend the complaint, cross-complaint, or answer after the date for filing an opposition to the demurrer, upon stipulation by P a g e | 2

the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.”

Where the plaintiff files a timely amended complaint no later than nine court before the hearing on a demurrer or motion to strike [as set forth in CCP §472(a) and CCP §1005(b)] that demurrer must be overruled as moot. (See JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477.)

Plaintiff timely filed her amended complaint. Accordingly, the demurrer is overruled as moot. Pursuant to California Rules of Court, 3.1308 (a)(1) and Santa Barbara County Superior Court Local Rule 1301(b), the court does not require a hearing; oral argument will be permitted only if a party notifies all other parties and the court by 4:00 p.m. (Department 2) the day before the hearing of the party’s intention to appear. This tentative ruling will become the ruling of the court if notice of intent to appear has not been given. If no hearing is held, plaintiff is directed to provide a proposed order and judgment for signature commensurate with this tentative, with appropriate notice to defendant pursuant to California Rules of Court rule 3.1312, which will then be entered by the court the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.”

Where the plaintiff files a timely amended complaint no later than nine court before the hearing on a demurrer or motion to strike [as set forth in CCP §472(a) and CCP §1005(b)] that demurrer must be overruled as moot. (See JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477.)

Plaintiff timely filed her amended complaint. Accordingly, the demurrer is overruled as moot. Pursuant to California Rules of Court, 3.1308 (a)(1) and Santa Barbara County Superior Court Local Rule 1301(b), the court does not require a hearing; oral argument will be permitted only if a party notifies all other parties and the court by 4:00 p.m. (Department 2) the day before the hearing of the party’s intention to appear. This tentative ruling will become the ruling of the court if notice of intent to appear has not been given. If no hearing is held, plaintiff is directed to provide a proposed order and judgment for signature commensurate with this tentative, with appropriate notice to defendant pursuant to California Rules of Court rule 3.1312, which will then be entered by the court.