Judge: John C. Gastelum, Case: 20-01138157, Date: 2022-07-28 Tentative Ruling

Demurrer to First Amended Complaint (FAC)

Ruling:  Off Calendar – no hearing will be held.  Defendant Pfizer Inc. (“Defendant”) demurs to Complaint of Plaintiff Maria Rodriguez (“Plaintiff”). 

As an initial matter, the Court notes Defendant did not satisfy the meet and confer requirement prior to filing the Demurrer.  A party filing a demurrer is required to meet and confer in person or by telephone with the party who filed the pleading subject to the demurrer and file a declaration stating the means by which the meet and confer took place, pursuant to Code of Civil Procedure section 430.41.  No meet and confer declaration has been filed.  However, the Court will still consider the merits of the Demurrer, as the Notice of Demurrer indicates that a meet and confer was conducted on March 10, 2022.  The Court admonishes counsel that any future failure to comply with all applicable laws or rules may result in the motion or demurrer being taken off calendar or denied, if appropriate.

The Court construes Plaintiff’s failure to oppose the Demurrer as an abandonment of the claims or an admission the Demurrer has merit.  (See Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20 [failure to oppose issue raised in demurrer deemed abandonment of the issue].) 

Although the Demurrer is unopposed, the Court finds that Plaintiff should be given an opportunity to cure the defects in the operative FAC that were raised in the Demurrer.  (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.) 

Accordingly, Defendant’s unopposed Demurrer to the FAC is SUSTAINED with 20 days’ leave to amend.

Defendant to give notice.