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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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11 WILLIAM D. KULHANEK, an Case No.: 21-cv-01917-H-MDD 12 individual, by and through his Successor- 13 In-Interest, Suzanne Hock; and ORDER DENYING DEFENDANTS’ SUZANNE HOCK, an individual, MOTION TO DISMISS AS MOOT 14

Plaintiffs, 15 [Doc. No. 3.] v. 16

ATRIA RANCHO PENASQUITOS; VSL

17 GP II, LLC, a Delaware Limited Liability 18 Company; VAOC PENASQUITOS, LP, a Delaware Limited Partnership; ATRIA 19 MANAGEMENT COMPANY, LLC, a 20 Delaware Limited Liability Company;

ATRIA SENIOR LIVING, INC.; QUINN

21 HERNANDEZ, an individual; and DOES 22 1 through 30, 23 Defendants. 24 On September 30, 2021, Plaintiffs William D. Kulhanek and Suzanne Hock filed a 25 complaint in the Superior Court of California, County of San Diego against Defendants 26 Atria Rancho Penasquitos, VSL GP II, LLC, VAOC Penasquitos, LP, Atria Management 27 Company, LLC, and Atria Senior Living, Inc., alleging claims for: (1) negligence; (2) 28 1 || willful misconduct; (3) statutory elder abuse/reckless neglect; and (4) wrongful death. 2 ||(Doc. No. 1-2, Compl.) On November 11, 2021, Defendants removed the action to the 3 || United States District Court for the Southern District of California pursuant to 28 U.S.C. § 4 || 1441 on the basis of jurisdiction under 28 U.S.C. § 1331. (Doc. No. 1, Notice of Removal.) 5 On November 18, 2021, Defendants filed a motion to dismiss Plaintiff's complaint 6 || pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. No. 3.) On 7 || December 3, 2021, in lieu of filing an opposition to the motion to dismiss, Plaintiffs filed 8 first amended complaint. (Doc. No. 4, FAC.) See Fed. R. Civ. P. 15(a)(1)(B); see 9 ||Sanford v. Motts, 258 F. 3d 1117, 1120 (9th Cir. 2001) (“Fed. R. Civ. P. 15(a) gives a 10 || plaintiff one opportunity to amend as of right.”’). In light of Plaintiffs’ amended pleading, 11 Court denies as moot Defendants’ motion to dismiss the complaint without prejudice 12 Defendants moving to dismiss the first amended complaint. See Ramirez v. Cty. of San 13 || Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“It is well-established in our circuit that 14 ‘amended complaint supersedes the original, the latter being treated thereafter as non- 15 || existent.’ ... Consequently, the Plaintiff's Second Amended Complaint superseded the 16 || First Amended Complaint, and the First Amended Complaint ceased to exist. Because the 17 || Defendants’ motion to dismiss targeted the Plaintiff's First Amended Complaint, which 18 || was no longer in effect, we conclude that the motion to dismiss should have been deemed 19 ||moot....” (citations omitted)). 20 IT IS SO ORDERED. 21 ||DATED: December 6, 2021 | | | ul | | | 22 MARILYN ®. HUFF, Distri ge 23 UNITED STATES DISTRICT COURT 24 25 26 27 28