Judge: Christian R. Gullon, Case: 24PSCV02614, Date: 2025-03-03 Tentative Ruling
Case Number: 24PSCV02614 Hearing Date: March 3, 2025 Dept: O
Tentative Ruling
CROSS-DEFENDANTS DELPRO, A&K EXPRESS LLC,
AND ALEXSANDR KARPOV’S DEMURRER AND DEMURRER TO EZ FINTECH CORP’S CROSS-
COMPLAINT is CONTINUED for Cross-Defendants’ Counsel’s failure to
meet and confer in good faith; the failure to meet and confer for any scheduled
demurrers/future demurrers will result in a continuation of the motion.
Background
This case arises from the alleged breach of contracts for
the performance of delivery services. On August 13, 2024, Plaintiff DELPRO
filed a complaint against EZ FINTECH CORP dba PIGGY EXPRESS, a California
corporation; PIGGYSHIP INC., a California corporation; JIANG CHEN, an
individual; LONGFEI CONG, an individual; DENNY WONG, an individual; XIAOLIN
WANG, an individual; MYNN XIE, an individual; JIANTING ZHANG, an individual;
and DOES 1 through 50, inclusive.
On October 29, 2024, Plaintiff DELPRO filed the operative
First Amended Complaint (FAC) against Defendants for:
1. Breach
of Contract
2. Breach
of Good Faith and Fair Dealing
3. Constructive
Fraud
4. Gross
Negligence
5. Unjust
Enrichment
6. Quantum
Meruit
7. Fraud
(Intentional Misrepresentation)
8. Negligent
Misrepresentation
9. Unfair
Business Practices
10. Accounting
11. Declaratory
Relief
On December 2, 2024, Defendants filed a joint answer to
the complaint.
On December 2, 2024, Cross-Complainant EZ FINTECH CORP
dba PIGGY EXPRESS filed a cross-complaint (CC) against Cross-Defendants DELPRO,
a California corporation; A&K EXPRESS LLC, a California limited liability
company; ALEKSANDR KARPOV, an individual; and ROES 1 THROUGH 20, inclusive,
for:
1. Breach
of Contract
2. Fraud
3. Unfair
Business Practices
On January 27, 2025, Cross-Defendants filed a demurrer to
each cause of action in the cross-complaint.
On February 14, 2025, Cross-Complainant filed an
opposition to the demurrer.
On February 21, 2025, Cross-Defendants filed two reply
briefs. The reply briefs are identical except that the second and last reply
brief filed on February 21, 2025 attaches an exhibit in which counsel for
Cross-Complainant purports to refuse to amend the cross-complaint because of
the belief that such pleading states sufficient facts to constitute a cause of
action for fraud. (See Reply at Exh. 1.) The Court notes that no declaration is
attached to the reply brief.
Also, the Court notes that Cross-Defendants reserved a
hearing on a demurrer with motion to strike for March 3, 2025. However, no
motion to strike was filed.
Discussion
Under Code of Civil Procedure
(CCP) section 430.41, the demurring party must meet and confer with the party who
filed the challenged pleading “in person, by telephone, or by video conference”
to determine if the demurring party's
objections can be resolved by agreement. (Code Civ. Proc., § 430.41, subd. (a).)
Trial courts are not required to ignore defects in the meet
and confer process. (Dumas v. Los Angeles County Bd. of Supervisors (2020)
45 Cal.App.5th 348, 355, fn. 3.) If “no meet and confer has taken place,
or [the court] concludes further conferences between counsel would likely
be productive, it retains discretion to order counsel to meaningfully discuss
the pleadings with an eye toward reducing the number of issues or eliminating
the need for a demurrer, and to continue the hearing date to facilitate that
effort.” (Ibid; See also CCP § 430.41, subd. (c) [“Nothing in this section [§ 430.41] prohibits the court from ordering a conference own
motion at any time or prevents a party from requesting
that the court order a conference to be held” (italics added)].) And parties are not just to meet and
confer, but to do in good faith. When the parties meet and confer (in person, by
telephone, or by videoconference), the demurring party must identify the specific
causes of action it believes are subject to demurrer, the basis for its position, and the legal
support for its position. (Code
Civ. Proc., § 430.41, subd. (a)(1).) The party whose pleading is subject to demurrer must then either (1) provide legal
support for its position that the pleading is legally sufficient or (2) explain
how an amendment can cure any legal insufficiency. (Id.)
Here, counsel
for Cross-Defendants declares that on January 12, 2025, he attempted to meet
and confer with James Zhou and Hanzhang Xu, counsel for Cross-Complainant, to
discuss the allegations in the cross-complaint. (Pogosian Decl., ¶ 3.) Counsel
states that, on January 15, 2025, Mr. Xu responded to his follow-up email of
the same date stating unequivocally that Cross-Complainant will not amend the
cross-complaint. (Pogosian Decl., ¶ 3; Reply at Exh. 1.)
Cross-Complainant
argues that the meet and confer was insufficient. The Court has reviewed the
meet and confer letter sent by counsel for Cross-Defendant and finds that such
letter only addresses the insufficiency of the second cause of action for fraud
and prayer for punitive damages. (Opp’n at Exh. 1.)
The Court
finds that the meet and confer requirement has not been satisfied pursuant to
CCP § 430.41. First, Cross-Defendants’ counsel did not meet and confer in
person, by telephone, or by video conference as required by CCP § 430.41(a).
Second, although the instant demurrer is made on the grounds that first,
second, and third causes of action in the cross-complaint are insufficiently
alleged, the meet and confer letter did not identify the first and third causes
of action as being subject to demurrer. (Opp’n at Exh. 1.) The meet and confer
letter only addressed the purported insufficiency of the second cause of action
for fraud as well as the prayer for punitive damages. (Id.) The instant
demurrer therefore exceeds the scope of the meet and confer letter. No meet and
confer has occurred as to the first and third causes of action in the
cross-complaint.
Additionally,
Cross-Complainant’s counsel did not meet and confer in good faith. Merely stating
that Cross-Complainant would not amend the cross-complaint because the fraud
cause of action is sufficient does not satisfy the meet and confer requirement.
“The party who filed the . . . cross-complaint . . . shall provide legal
support for its position that the pleading is legally sufficient, or in the
alternative, how the . . . cross-complaint . . . could be amended to cure any
legal insufficiency.” (Code Civ. Proc., § 430.41, subd. (a)(1).)
The Court finds that the parties have not met and
conferred in good faith. The Court orders the parties to meet and confer in
good faith in accordance with Code Civ. Proc. § 430.41.
Conclusion
Based on the foregoing, this demurrer is continued.