Judge: Audra Mori, Case: 22STCV09480, Date: 2022-12-08 Tentative Ruling

Case Number: 22STCV09480    Hearing Date: December 8, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Angie Craft (“Plaintiff”) filed this action against defendants Dolce & Associates, Patrick Sullivan, Patricia Sullivan, Patricia Norwine, Staci's Home Inspections, Staci Goddard, 5650 Sumner Way Condominium Association, Caren Saiet, and Roe Agency for injuries Plaintiff sustained when she fell out of a third-story window in her recently purchased condominium.  Following an order sustaining a demurrer to the original complaint with leave to amend, Plaintiff filed the operative First Amended Complaint (“FAC”) alleging in part, “Defendant Caren Saiet ("Defendant Buyer's Agent") was the real estate broker acting on behalf of Plaintiff. Pursuant to the doctrine of respondeat superior, the employer of defendant Caren Saiet (hereinafter "ROE AGENCY") is liable to Plaintiff for the acts and omissions of defendant Saiet. Plaintiff relied upon the inspection completed by Staci's Home Inspections and their agent Staci Goddard ("Defendant Inspectors") in determining whether her home was free of dangerous conditions, as well as inspections required to be performed by Caren Saiet, ROE AGENCY, Patricia Norwine, Dolce &Associates and/or Defendant Sellers.”  (FAC at p. 4.)  The FAC asserts a single cause of action for negligence against all defendants. 

Defendant Caren Saiet (“Defendant”) now demurs to the complaint arguing the complaint fails to state sufficient facts to constitute a claim against her, and that the negligence claim is uncertain.  Plaintiff opposes the demurrer, and Defendant filed a reply.    

Defendant provides that she was Plaintiff’s real estate agent for the purchase of the subject property, but Defendant contends she is not liable under California law for Plaintiff’s injuries.  Defendant argues that she owed no statutory duty under Civil Code § 2079(a) to Plaintiff, and that the FAC does not allege that Defendant had a duty to determine if the property was free of any dangerous conditions.  Further, Defendant contends that the statutory disclosure requirements of Civil Code § 1102 do not apply to Defendant as the buyer’s agent, and that Defendant had no duty to verify the findings of the home inspector.  Defendant argues that there are no facts alleging a breach of a duty of care by Defendant to Plaintiff, and that the cause of any harm suffered by Plaintiff was Plaintiff’s own failure to exercise reasonable care to protect herself.     

In opposition, Plaintiff contends that Defendant raises new arguments in the demurrer that were never the subject any meet and confer efforts before Defendant filed the instant demurrer.  The Court notes there is no declaration attached to Defendant’s demurrer attesting to any meet and confer efforts regarding any objections to the FAC. 

Defendant, in reply, does not dispute failing to meet and confer before filing the demurrer.  Instead, Defendant argues that meeting and conferring is not required when a court grants leave to amend after sustaining a demurrer.  In making this argument, Defendant relies on CCP § 430.41(c), which states:

If a court sustains a demurrer to one or more causes of action and grants leave to amend, the court may order a conference of the parties before an amended complaint or cross-complaint or a demurrer to an amended complaint or cross-complaint, may be filed. If a conference is held, the court shall not preclude a party from filing a demurrer and the time to file a demurrer shall not begin until after the conference has concluded. This section does not prohibit the court from ordering a conference on its own motion at any time or prevent a party from requesting that the court order a conference to be held.

            Defendant contends that no conference under this provision was ordered.  Nonetheless, CCP § 430.41(c) does not state that a party is not required to meet and confer after a demurrer is sustained to a pleading and an amended pleading is filed.  Rather, this provision merely authorizes the Court to “order a conference of the parties before an amended complaint or cross-complaint or a demurrer to an amended complaint or cross-complaint, may be filed.”  (Ibid.)

Moreover, CCP § 430.41(a) states:

Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.

(Emphasis added.) 

            CCP § 430.41(a) clearly requires the parties to meet and confer after an amended pleading is filed and before a demurrer is filed to the amended pleading.  Defendant failed to do so here.  Therefore, the hearing on the demurrer will be continued for the parties to meet and confer as required by Code. 

            The hearing on Defendant’s demurrer to the FAC is continued to January 18, 2023 at 1:30 p.m. in this Department.  Defendant is ordered to file a meet and confer declaration that fully complies with CCP § 430.41(a)(1)-(3) at least 16 days before the continued hearing date.  Any supplemental opposition is due at least nine court days before the hearing, and any supplemental reply is due five days before the hearing. 

Moving Defendant is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 8^th day of December 2022