Judge: Alison Mackenzie, Case: 23STCV08319, Date: 2023-11-27 Tentative Ruling

Case Number: 23STCV08319    Hearing Date: November 27, 2023    Dept: 55

NATURE OF PROCEEDINGS:  Demurrer to Complaint.

The demurrer is overruled.  Twenty days to answer.

On 4/14/23,  JOHN J. ZIELLO and ALEJANDRINA ZIELLO (“plaintiffs”) filed a Complaint against CHERYL RIEDEL (“Defendant”), alleging that Defendant refuses to perform an agreement for Plaintiffs to buy 2065 W. 231st, Torrance, for the sum of $850,000.00.  The causes of action are: 1) Specific Performance and 2) Breach of Contract.

Defendant filed a demurrer to the Complaint, on the ground that the written contract requires arbitration, such that the Court lacks jurisdiction.  Plaintiffs opposed based on arguments that (1)  the demurrer well exceeded the 35-day limit to set a hearing, (2) demurring party failed to file a declaration reporting on the meet and confer, (3) the purchase agreement, at paragraph 22(c)(a) provides that excepted from arbitration include the recording of a notice of pending action, injunction, or other provisional remedies and (4)  demurrers are not authorized based upon arbitration agreements.

As to the issue of the demurrer, it asserts an unauthorized procedure for addressing an arbitration agreement.  “[A] request to arbitrate may not be raised by a demurrer…. The issue is properly reached by a plea in abatement in the answer that the action was prematurely brought.”  Kustom Kraft Homes v. Leivenstein (1971) 14 Cal. App. 3d 805, 811.

Therefore, the Court need not address the remaining issues raised in opposition.  However, the Court notes that the demurrer must be noticed for hearing not more than 35 days after filing or on the first available court date and courts can extend that deadline for good cause (CRC 3.1320(d)), but the instant documents do not address whether earlier court dates were available or there is good cause.  Additionally, failures to comply with declaring a sufficient meet and confer are not grounds to overrule demurrers. Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2023)  § 7:97.27.