Judge: Daniel S. Murphy, Case: 23STCV29847, Date: 2024-09-23 Tentative Ruling

Case Number: 23STCV29847    Hearing Date: September 23, 2024    Dept: 32

BACKGROUND

            On December 6, 2023, Plaintiff Deanna Edwards filed this action for legal malpractice against Defendants P. Sterling Kerr dba Kerr Simpson Attorneys at Law and George E. Robinson.

            On January 29, 2024, the Court granted the parties’ stipulation to stay the case pending mediation.

            On August 27, 2024, Defendants filed the instant demurrer on the grounds that Plaintiff failed to participate in mediation. Plaintiff filed her opposition on September 6, 2024.

LEGAL STANDARD

A demurrer for sufficiency tests whether a pleading states a cause of action or defense. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the pleading, as it stands, unconnected with extraneous matters, states a cause of action or defense. (Hahn, supra, 147 Cal.App.4th at 747.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.)

The Court notes that Defendants have not complied with the meet and confer requirement. The demurrer is unaccompanied by any declaration, much less one demonstrating meet and confer. However, inadequate meet and confer is not a reason for overruling a demurrer. (Code Civ. Proc., § 430.41(a)(4).) Therefore, the Court proceeds on the merits.   

DISCUSSION

            The retainer agreement attached to the complaint provides that “[s]hould a dispute arise between Client and our firm that cannot be resolved informally, the firm and client agree to mediate the dispute.” (Compl., Ex. 3.) Defendants demur on the grounds that Plaintiff has failed to participate in mediation.

            However, a demurrer may only be sustained based on defects on the face of the complaint or from judicially noticeable materials. (SKF Farms, supra, 153 Cal.App.3d at p. 905.) Here, there is no indication from the face of the complaint or from judicially noticeable materials that Plaintiff refused to mediate. Defendants otherwise present no arguments regarding the sufficiency of the allegations in relation to the elements of legal malpractice. Therefore, there is no basis for demurrer.

CONCLUSION

            Defendants’ demurrer is OVERRULED.