Metropolitan News-Enterprise


Tuesday, December 22, 2015


Page 1


Judgment Based on Superseded Complaint Reversed


By a MetNews Staff Writer


The Court of Appeal for this district has reversed a judgment of dismissal because the trial judge—now an appellate justice here—acted on the basis of a complaint that had been superseded.

It was the second time in 20 days that a decision was reversed by a Los Angeles-based appeals panel for that reason.

John L. Segal, who was confirmed July 31 as an associate justice of Div. Seven, was a judge of the Los Angeles Superior Court when, at a hearing on Dec. 18, 2014, he dismissed an action based on a contractual clause specifying that Quebec would be the forum for any litigation between the parties.

However, the previous day, the plaintiff had filed a first amended complaint.

Segal on Dec. 18 took the matter under submission and issued a written ruling later in the day. His decision does not reflect an awareness that a new complaint had been filed, but the minutes show that both sides were represented at the hearing.

He declared in the written ruling that the plaintiff had the burden “to show that enforcement” of the forum-selection clause “would be unreasonable under the circumstances,” that the plaintiff “ has not filed any opposition to this motion,” and that the plaintiff has therefore “failed to carry its burden of showing that enforcement of the forum selection clause is unreasonable under the circumstances.”

Acting Presiding Justice Judith Ashmann-Gerst, of Div. Two, noted in an unpublished opinion, filed last Tuesday, that a plaintiff has a statutory right to file one new pleading at any time before an answer is filed. The defendant in the case at hand had not answered, but had specially appeared to contest jurisdiction.

“Once plaintiff filed the [first amended complaint], it became the operative pleading in this action,” she wrote. “Defendant’s motion to dismiss should have been taken off calendar.”

The case is Globus SU v. Eau Zone Huiles & Fragrance LTEE, B261434.

Ashmann-Gerst’s opinion follows on the heels of one filed by Div. Three of this district’s Court of Appeal likewise reversing a judgment of dismissal based on a superseded complaint. There, Los Angeles Superior Court Judge Maureen Duffy–Lewis had sustained demurrers without leave to amend to a complaint even though a new pleading had been filed.

The defendants appeared at the hearing on the demurrer but the plaintiff did not. Following the ruling, the plaintiff made a motion to vacate, which Duffy-Lewis denied, ordering that a judgment of dismissal be entered.

The defendants in that case, in which the opinion was also unpublished, conceded the judge’s error in the appeals court.


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