SUPERIOR COATINGS, INC. v. LOS ANGELES UNIFIED SCHOOL DISTRICT
Court of Appeals of California, Second District, Division Three.
Filed August 23, 2012.
2. Procedural issues.
a. Superior failed to avail itself of section 472; it did not file a first amended complaint prior to the hearing on the demurrer to the original complaint; therefore, the original complaint is the operative complaint.
Section 472 states: "Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party . . . ." (Italics added.)
Here, Superior did not file any opposition to the demurrer, nor did it file a first amended complaint prior to the March 3, 2011 hearing on the demurrer. Instead, it merely filed a paper indicating its "intent to file a first amended complaint."
Because Superior did not file a first amended complaint prior to the hearing on the demurrer, the trial court properly resolved this case pursuant to the District's demurrer to the original complaint, which was the operative complaint in this action.
b. Superior was not entitled to mandatory relief from its failure to file an amended complaint prior to the hearing on the demurrer; the trial court properly refused to entertain the proposed first amended complaint after it sustained the demurrer to the original complaint without leave to amend.
After the trial court sustained the demurrer to the original complaint without leave to amend, Superior filed a motion to allow the filing of a first amended complaint. Its motion was supported by counsel's affidavit of fault, pursuant to section 473(b). Counsel took full responsibility for failing to file a first amended complaint prior to the hearing on the demurrer and attributed the problem to miscommunication within the firm.