ROJAS, MD, DR. v. CABALLERO, ET AL.

CASE NO.: 24NWCV00119 HEARING: Thursday, August 20, 2026, at 9:30 AM I. Cross-Defendant DR. ALVARO ROJAS, M.D.'s Demurrer to Cross-Complainants PATRICIA CABALLERO and CORNERSTONE SURGICAL CENTER's Second Amended Cross-Complaint is SUSTAINED without leave to amend. II. Cross-Defendant's Motion to Strike is MOOT given the above ruling. Moving Party to give notice.

Background

On January 11, 2024, Plaintiff Dr. ALVARO ROJAS, M.D. filed this action against Defendants PATRICIA CABALLERO; CORNERSTONE SURGICAL CENTER; BEAUTIFUL REFLECTIONS MEDICAL CENTER; and DOES 1 through 10, inclusive. On January 28, 2025, Plaintiff YAN LIU ("Plaintiff") filed a breach of contract action against Defendants ASD CAPITAL MANAGEMENT LP; HONEPENG WANG, aka ALEX WANG; and DOES 1 through 50, inclusive. On March 7, 2025, Cross-Complainants PATRICIA CABALLERO and CORNERSTONE SURGICAL CENTER ("Cross-Complainants") filed a Cross-Complaint against Cross-Defendant Dr. ALVARO ROJAS, M.D. ("Cross-Defendant"). On May 1, 2026, Cross-Complainants filed the operative Second Amended Cross-Complaint ("SACC"). Cross-Complainants' SACC asserts the following causes of action: 1. Abuse of Process and 2.

Fraud and Deceit On June 12, 2026, Cross-Defendant the instant Demurrer with Motion to Strike. Third Amended Cross-Complaint On August 10, 2026, Cross-Complainants filed a Third Amended Cross-Complaint. "A party may amend its pleading once without leave of the 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.

A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties." (CCP Sec. 472(a).) "All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days ... before the hearing." (CCP Sec. 1005, subd. (b).) "[T]he filing of an amended complaint moots a motion directed to a prior complaint." (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477; see also Sylmar Air Conditioning v.

Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054 ["[t]he filing of [a] first amended complaint render[s] [a movant's] demurrer moot since "'an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading"'" (citations omitted)].) Accordingly, a "demurrer [directed to the original pleading] should [be] taken off calendar" when an amended complaint is filed. (People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 506.)

However, this right is limited to the amendment of a complaint initiating an action into a first amended complaint; otherwise stated, a party cannot amend an already amended complaint as a matter of course even though a demurrer has been directed to the operative and already amended pleading. (See Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 572-79 [holding, as a matter of first impression, that a party's right to amend a pleading as a matter of course under Code of Civil Procedure section 472, subdivision (a) is limited to the original pleading commencing the action].)

The same principle extends to Cross-Complaints, "the right to amend a cross-complaint as a matter of right is similarly limited to the original version of the cross-complaint." (Id. at 575.) Thus, Cross-Complainants did not have a right to amend their SACC as a matter of course and the SACC remains the operative pleading. First Cause of Action - Abuse of Process To establish a cause of action for abuse of process, Cross-Complainants must plead: (1) that Cross-Defendant entertained an ulterior motive in using the process and (2) that Cross-Defendant committed a willful act in a wrongful manner. (Coleman v.

Gulf Ins. Group (1986) 31

Cal.3d.782, 792.) For ulterior motive, Cross-Complainants need not plead actual malice or a collateral, illegal objective, rather malice may be inferred from the willful abuse of process. (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1465.) The mere filing or maintenance of a lawsuit, even for an improper purpose, is not a proper basis for an abuse of process action. (Warren v. Wasserman, Comden & Casselman (1990) 220 Cal.App.3d 1297, 1301.) Indeed, some definite act or threat not authorized by the process or aimed at the objective not legitimate in the use of process is required. (Christensen v.

Young (1975) 47 Cal.App.3d 613, 618.) Cross-Complainants allege that Plaintiff's Original January 11, 2024, Complaint contained three fraudulent documents, attached as Exhibits 1 through 3. (SACC P.P. 9-11, 14) Cross-Complainants' allegations are insufficient. First, an allegation that Cross-Defendant filed a Complaint, even for an improper purpose, is not enough to maintain an abuse of process action. (Warren v. Wasserman, Comden & Casselman (1990) 220 Cal.App.3d 1297, 1301.) Second, in Cantu, plaintiff alleged that defendants knowingly filed an allegedly false and libelous declaration to satisfy the willful act element. (Cantu v.

Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 886.) The Cantu Court rejected plaintiff's argument and held that statements made in the course of litigation are subject to litigation privilege and cannot provide the basis for an abuse of process action. (Ibid.) The litigation privilege also applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even if the publication occurs outside the courtroom in the absence of the court function of the court's officers. (Heterich v.

Peltner (2018) 20 Cal.App.5th 1132, 1139.) The privilege also extends to fraudulent statements, even when made to a court, if they were made in furtherance of litigation. (Id. at 1141.) Thus, even taking the allegations as true, that Cross-Defendant filed fraudulent exhibits, Cross-Defendant's filing is protected by litigation privilege. Cross-Defendant's Demurrer to Cross-Complainants' First Cause of Action for Abuse of Process is SUSTAINED. Second Cause of Action - Fraud and Deceit To state a cause of action for Fraud, Plaintiff must plead: (1) a misrepresentation, (2) scienter, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage. (Belasco v.

Wells (2015) 234 Cal.App.4th 409, 424.) Fraud claims must be pled with specificity, requiring Plaintiff to plead facts which show how, when, where, to whom, and by what means Defendant asserted the alleged representations. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) Here, Cross-Complainants fail to allege justifiable reliance. Moreover, Cross-Complainants allegations do not meet the heightened pleading standard for fraud. For instance, Cross-Complainants

allege, "Rojas, cross-defendants and each of them misrepresented their status and credentials and concealed them from Cross-Complainants fully knowing the falsity of cross-defendant's position, intended to induce Cross-complainants to rely on their purported representations intending to cause Cross- complainants to suffer resulting damages." (FACC, P. 19.) Cross-Complainants merely recycle the elements of fraud without allegation specific facts to support their contention. To the extent Cross-Complainants argue Exhibits 1-3 attached to the Complaint are fraudulent, that conduct is protected by litigation privilege.

Cross-Defendant's Demurrer to Cross-Complainants' Second Cause of Action for Fraud and Deceit is SUSTANED. Leave to Amend¿ ¿¿¿ ¿¿¿ Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy¿ (1976) 18 Cal.3d 335, 348.) The burden is on the Plaintiff to show the Court that a pleading can be amended successfully. (Lewis v.¿Youtube, LLC¿ (2015) 244 Cal.App.4th 118, 226.)¿ Cross-Complainants have not demonstrated they can successfully amend their SACC.

Further, Cross-Complainants failed to amend the defects the Court identified in its last Order, wherein the Court sustained Cross-Defendant's Demurrer for similar reasons. Finding no reasonable possibility of successful amendment, leave to amend is DENIED. Motion to Strike Having sustained Cross-Defendant's Demurrer, Cross-Defendant's Motion to Strike is rendered MOOT.

Conclusion

Cross-Defendant's Demurrer is SUSTAINED without leave to amend. Cross-Defendant's Request for Judicial Notice is GRANTED. (Evid. Code Sec. 452(d).) Case Number: 25NWCV03798 Hearing Date: August 20, 2026 Dept: R #16 COOPER v. VOLKSWAGEN GROUP OF AMERICA, INC.