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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Castro's Carpet Cleaning, Inc. v. Elizabeth Bush

Case No: 17CV03855
Hearing Date: Mon Jan 08, 2018 9:30

Nature of Proceedings: Demurrer/Motion to Strike

 Tentative Ruling:

Pursuant to Code of Civil Procedure section 472(a), “[a] party may amend its pleading once without leave of 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.” (Emphasis added.)

Plaintiff’s First Amended Complaint (FAC) was not filed until well beyond the time allowed under Section 472(a). Consequently, the FAC was not filed without leave as a matter of right, and the demurrer and motion to strike are not mooted by its filing.

 

The Court will therefore consider the now-filed FAC as plaintiff’s acknowledgment that the demurrer and motion to strike had merit, will sustain the demurrer and grant the motion to strike with leave to amend, and will deem the FAC to be that amendment. The FAC will count toward the three amendment limitations set forth in Code of Civil Procedure sections 430.41(e)(1) [applicable to amendments made in response to a demurrer] and 435.5(e)(1) [applicable to amendments made in response to a motion to strike].

 

 
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