Judge: Armen Tamzarian, Case: 22STCV18567, Date: 2023-04-03 Tentative Ruling

Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.

Case Number: 22STCV18567    Hearing Date: April 3, 2023    Dept: 52

Defendant Perrin Davidson’s Demurrer to First Amended Complaint; Defendant Sarah Nazari’s Demurrer to First Amended Complaint

            Defendants Perrin Davidson and Sarah Nazari each demur to all causes of action alleged in plaintiff David Abbasi’s first amended complaint.

            Both demurrers are untimely.  “A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.”  (CCP § 430.40(a).)

Defendants Perrin Davidson and Sarah Nazari were both served with the first amended complaint by notice and acknowledgement of receipt under Code of Civil Procedure section 415.30.  “Service of a summons pursuant to this section is deemed complete on the date a written acknowledgement of receipt of summons is executed, if such acknowledgement thereafter is returned to the sender.”  (CCP § 415.30(c).) 

Plaintiff’s proof of service of summons on Perrin Davidson shows he executed the notice of acknowledgment of receipt on January 24, 2023.  Plaintiff’s proof of service of summons on Sarah Nazari also shows her co-defendant and counsel Perrin Davidson executed the notice of acknowledgment of receipt on January 24, 2023.  Defendants’ 30-day deadline to demur therefore was February 23.  They served these demurrers on March 3 and filed them on March 10.  They are untimely.

In their replies, Perrin Davidson and Nazari contend it is “disingenuous” for plaintiff’s counsel to argue “that the demurrer was untimely” because Davidson met and conferred with plaintiff’s counsel about these demurrers by email from February 16 to February 28.  (Replies, p. 2; P. Davidson Decls., ¶ 2, Ex. A.)  That does not make their demurrers timely.

The Code of Civil Procedure provides a manner for demurring defendants to extend their deadline to demur based on the meet and confer process.  “If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.”  (CCP § 430.41(a).)  Neither Perrin Davidson nor Sarah Nazari filed any such declaration before the date their demurrers were due.    

The demurrers by defendants Perrin Davidson and Sarah Nazari are overruled.  Defendants Perrin Davidson and Sarah Nazari are ordered to answer within 20 days.