Judge: David A. Rosen, Case: 21GDCV00687, Date: 2022-08-12 Tentative Ruling

Case Number: 21GDCV00687    Hearing Date: August 12, 2022    Dept: E

Hearing Date: 08/12/2022 – 1:30pm
Case No.  21GDCV00687
Trial Date:   Trial Setting Conference on 08/12/2022 at 1:30pm
Case Name: SOCAL LIEN SOLUTIONS LLC v. SOLUTION WEST MANAGEMENT INC

TENTATIVE RULING DEMURRER 

Moving Party: Cross-Defendants, Levon Halulyan dba LTH Design & Construction, and Vardan Halulyan
Responding Party: Cross-Complainant, Solution West Management, Inc.

Oppo and Reply submitted

Proof of Service Timely Filed (CRC Rule 3.1300(c)): ok
16/21 Court Days Lapsed (CCP 1005(b)): ok
Proper Address: ok

RELIEF REQUESTED 
Cross-Defendants’ demur to the third, fourth, fifth, and sixth causes of action in the Cross-Complaint.

BACKGROUND
SoCal Lien Solutions LLC filed a complaint against Solution West Management Inc alleging two causes of action: (1) Open Book Account and (2) Services Rendered.

Solution West Management Inc. filed a Cross-Complaint against CNA Surety, Levon Halulyan, Vardan Halulyan, and LTH Design & Construction Company alleging seven causes of action: (1) Breach of Contract, (2) Breach of Implied Covenant of Good Faith and Fair Dealing, (3) Fraud in the Inducement, (4) Unfair and Fraudulent Business Practices (Cal. Bus. & Prof. §17200 et seq.), (5) Unfair and Fraudulent Business Practices (Cal. Bus. & Prof. §7031(b) et seq.), (6) Violation of California Civil Code §8400 and §3079, and (7) Negligence.

PROCEDURAL
Meet and Confer
Moving party alleges it met and conferred but the parties were unable to resolve the deficiencies in the cross-complaint. (Parikh Decl. ¶4.)

ANALYSIS AND TENTATIVE RULING
“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).)

Here, the demurrer was not filed within 30 days after the cross-complaint was served. The cross-complaint was filed either on 6/16/2021, having been served on Movants the day before.

The moving party in the instant motion previously moved for judgment on the pleadings but this Court denied that motion as it was not appropriately made since the moving party/defendant had not filed an Answer.

From this Court’s Minute Order of June 17, 2022: 

CCP 438(f) states as follows: The motion provided for in this section may be made only after one of the following conditions has occurred: (1) If the moving party is a plaintiff, and the defendant has already filed his or her answer to the complaint and the time for the plaintiff to demur to the answer has expired. (2) If the moving party is a defendant, and the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired. (CCP §438(f)(1)-(2).) Here, CCP §438(f)(2) applies since moving party is a defendant. [“Defendant” includes a cross defendant (CCP §438(a)(3)).] However, moving party, cross-defendant, never filed an answer to the cross-complaint.

Thus, Movant never filed an Answer to the Cross-complaint, and thus could not move for Judgment on the Pleadings, and Movant has missed the deadline, by far, to Demur to the Cross-Complaint.

Demurrer Overruled. Cross-defendants are to file and serve an Answer to the Cross-complaint within 20 days hereof.