dissenting.
I respectfully dissent. During the first hearing on defendant’s motion for summary judgment, the appellant, who previously had been pro se but had just retained counsel, was given leave to file a second amended complaint. Leave to file an amended pleading was based on the representation that counsel could plead a cause of action. After the second amended complaint was served, the defendant filed its motion to strike and reset the hearing on the motion for summary judgment. It is apparent from the transcript of the hearing that the lower court plainly considered the second amended complaint as the operative pleading throughout the hearing. Even if the court had not, however, it would not have mattered since the new complaint was not a material improvement over the previous one. The complaint was stricken because the condition for allowing it to be filed was not met. That is to say that it still did not state a cause of action. The court found that there was no issue of fact and that the defendant was entitled to judgment as a matter of law. Appellant has not convinced me that the summary judgment on any version of the complaint was wrong.
I would affirm.