Judge: John C. Gastelum, Case: 2022-01240535, Date: 2023-07-18 Tentative Ruling

(1) Motion to Strike Cross-Complaint (2) Demurrer to Cross-Complaint (3) CMC

Ruling:  (1-3) Off Calendar – no hearing will be held.  The Motion to Strike Cross-Complaint of Cross-Complainant Steven Leo Franklin (ROA 83) and Demurrer to Cross-Complaint of Cross-Complainant Steven Leo Franklin (ROA 82) filed by Plaintiff/Cross-Defendant, Bianco Enterprises, LLC is CONTINUED to 8-29-2023 in Department C11 at 2 p.m.

Code of Civil Procedure section 430.41, subdivision (a) states, “[b]efore filing a demurrer . . ., the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41(a), emphasis added.) As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. (Code Civ. Proc. § 430.41(a)(1).)

“If, upon review of a declaration under section 430.41, subdivision (a)(3), a court learns no meet and confer has taken place, or 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.” (Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 356.) Code of Civil Procedure section 430.41(c) also provides, “[t]his section does not prohibit the court from ordering a conference on its own motion at any time or prevent a party from requesting that the court order a conference to be held.”

Here, Bianco’s counsel provides that counsel telephoned and left a detailed voicemail for Defendant/Cross-Complainant, Steven Leo Franklin on December 21, 2022, and that Franklin did not return counsel’s call; that counsel received a call from John Castro, a senior paralegal with the Law Offices of Justin P. Rodriguez who appeared in a “Limited Scope Representation” but which was not listed as counsel of record, and advised that Mr. Rodriguez would be “probably” representing Franklin, and that Mr. Rodriguez would return from vacation “in early January,” and that ultimately, Bianco’s counsel was unable to meet and confer with Franklin. (Declaration of Mitchell Steinberger, ¶¶ 2-4, ROA 83, 82.) It appears that Bianco’s counsel made a single attempt on December 21, 2022 to meet and confer with Franklin, and then filed the instant demurrer and motion to strike on February 1, 2023, over a month later. It not clear whether Bianco identified all of the causes of action at issue and identified with legal support the basis of the deficiencies.

The Court ORDERS the parties to meet and confer in person, by zoom or video remote technology, or over the telephone concerning the issues raised in the demurrer and motion to strike, which appear to be the same issues.

Bianco’s counsel to file and serve a declaration no later than nine (9) court days before the hearing date describing the parties’ meet and confer efforts, and specifying what issues have been resolved, or remain for the Court to resolve. If no declaration is timely filed, the Court will construe this to mean that the issues have been resolved and will take the demurrer and motion to strike off-calendar.

Court orders Clerk to give notice to all parties.