Judge: Helen Zukin, Case: 19SMCV01534, Date: 2022-07-26 Tentative Ruling

Case Number: 19SMCV01534    Hearing Date: July 26, 2022    Dept: 207

Background

On August 30, 2019, Plaintiff Matthias Jan Emcke (“Plaintiff”) initiated this action for quiet title against Defendant 6097 West Winding Way, LLC, (“Defendant”) claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to Plaintiff’s right to title, or any cloud on Plaintiff’s right to title thereto, and Does 1 through 40. On December 15, 2021, Plaintiff filed the operative First Amended Complaint (“FAC”), alleging causes of action for (1) declaratory relief, (2) quiet title, (3) trespass, (4) declaratory relief, and (5) quiet title.

This action involves determination of the bounds of a floating easement on Defendant’s property created in 1997 by two judgments (the “Roadway Easement”). Plaintiff alleges this case is necessary to establish where the easements are to be placed on Defendant’s property. The FAC alleges, Plaintiff approached Defendant seeking an agreement to include the right to construct and maintain water and utility structures, including pipes and conduit under, within and adjacent to the easements. The additional easement rights will not materially impact Defendant’s use or enjoyment of its property or overburden the easements because the additional structures will be located within the same area. Defendant refused to include these rights.

Defendant brings this demurrer to every cause of action asserted in the FAC, arguing each fails to state sufficient facts to constitute a cause of action against it under Code Civ. Proc. § 430.30(e).

Standard on Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (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. (C.C.P. § 430.30(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. (Id.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.) Where a demurrer is brought under Section 430.30(e), the only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

Analysis

            1.         Meet and Confer Requirement

Before filing a demurrer, the demurring or moving party is required to “meet and confer in person or by telephone” with the party who filed the pleading demurred to “for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (C.C.P. § 430.41(a).) Defendant submitted a declaration of counsel attesting to a telephonic meet and confer with Plaintiff’s counsel on May 25, 2022. In response, Plaintiff submitted a declaration from counsel stating the telephone conversation on May 25 was solely about settlement and stating Defendant’s counsel “did not meet and confer with me, either orally or in writing, regarding the issues raised in the demurrer.” (Carvalho Decl. at ¶2.) In its reply, Defendant does not claim the May 25 call was about the demurrer, but instead alleges “Counsel for both parties have conferred numerous times, regularly, and often, often in the context of settlement attempts, and Defendant’s counsel has on several occasions apprised Plaintiff’s counsel of asserted defects in his case and pleading.” (Reply at 6.) Code Civ. Proc. § 430.41(a) requires the parties to meet and confer to specifically discuss a demurrer and whether an agreement can be reached which would resolve the demurring parties’ objections. It does not appear Defendant conducted such a meet and confer here. Regardless, the failure to meet and confer is not grounds for overruling Defendant’s demurrer and the Court will proceed to the merits of Defendant’s demurrer. (C.C.P. § 430.41(a)(4).)

            2.         Timeliness

Plaintiff contends the demurrer is untimely. The Court agrees. Defendant argues the demurrer is timely, citing McAllister v. County of Monterey (2007) 147 Cal.App.4th 253. Defendant’s reliance on McAllister is misplaced. In McAllister, plaintiff brought a complaint against several defendants, who filed demurrers alleging plaintiff had failed to exhaust his administrative remedies. The trial court sustained those demurrers, granting leave to amend certain causes of action. The litigation was then stayed pending an administrative appeal. Upon conclusion of that appeal, the defendants filed a second round of demurrers to plaintiff’s original complaint for failure to state a cause of action. The trial court sustained those demurrers without leave to amend and plaintiff appealed, arguing the second round of demurrers was untimely and should have been overruled on that basis.

The Court of Appeal affirmed the trial court. In determining the timeliness of defendants’ demurrers, the Court turned first to Code Civ. Proc. § 430.40(a), which provides “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.” (Id. at 280.) The Court noted the use of “may” and not “must” in the statute indicated the 30-day time period was not mandatory. Before turning to address defendants’ substantive arguments as to timeliness, the Court, in passing, noted the 30-day limit contained in Code Civ. Proc. § 430.40 “nominally applies only to a first round of demurrers. As one commentator observes: ‘No statute or rule specifically provides a time limit for demurring to an amended complaint.’ (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) ¶ 7:139, p. 7-53.) In a similar vein, we are aware of no statute or rule that specifically governs situations such as that presented here, where no amended pleading is filed after dissolution of a stay.” (Id.)

The Court further found the trial court had discretion to entertain defendants’ demurrers even if they were untimely. “There is no absolute right to have a pleading stricken for lack of timeliness in filing where no question of jurisdiction is involved, and where, as here, the late filing was a mere irregularity [citation]; the granting or denial of the motion is a matter which lies within the discretion of the court.” (Id. at 281-282 [quoting Tuck v. Thuesen (1970) 10 Cal.App.3d 193, 19].)

The question of the timeliness of a demurrer to an amended complaint was not before the Court in McAllister, and subsequent Courts have found the 30-day limit imposed by Code Civ. Proc. § 430.40(a) applies to demurrers to amended complaints. (See, e.g., Carlton v. Dr. Pepper Snapple Group, Inc. (2014) 228 Cal.App.4th 1200, 1210 [holding C.C.P. § 430.40(a) applies to demurrer to amended complaint].) Indeed, the treatise quoted by the McAllister Court has since been amended and no longer states no statue or rule provides a time limit for demurring to an amended complaint. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group) ¶ 7:139.)

The Court finds Defendant’s demurrer is thus untimely. The Court has discretion as to whether to consider Defendant’s demurrer despite its untimeliness. “The court may, in furtherance of justice, and on any terms as may be proper, … enlarge the time for answer or demurrer.” (C.C.P. § 473(a)(1); see also McAllister, supra, 147 Cal.App.4th at 281-282.) The Court in its discretion declines to consider Defendant’s untimely demurrer. This is not a situation where Defendant’s late filing was a “mere irregularity.” Rather, the FAC here was filed and served on December 16, 2021, making Defendant’s responsive pleading due in January 2022. Defendant’s demurrer was not filed a few days or even weeks late, it was filed five months late. In those intervening five months, Defendant attacked the FAC through a motion for summary judgment and a motion for judgment on the pleadings, and was thus able to bring this demurrer in a more timely fashion.

Accordingly, the Court in its discretion declines to consider Defendant’s demurrer and it is OVERRULED as untimely.

Conclusion

Defendant’s demurrer to the First Amended Complaint is OVERRULED.