Judge Lee S. Arian, Case Number: 18STCV00258, Date: 2024-11-20 Tentative Ruling

On October 10, 2018, Plaintiff filed the present case. After numerous efforts to serve Defendants and several motions to quash service, Plaintiff effected service by publication on Procedure section 415.50. Plaintiff submits the affidavit of Melinda Marguez of the Los Angeles Times showing that the summons was published starting on September 18, 2023, September 25, 2023, October 02, 2023 and October 09, 2023, and filed Proof of Publication on November 9, 2023.

On December 20, 2023, Defendants’ Fifth Motion to Quash came on for hearing. No one appeared on behalf of the Defendants, and the Court adopted its tentative ruling denying Defendants’ Motion to Quash, set a trial setting conference for February 26, 2024, and ordered Defendants to file an answer within 30 days from the Notice of Ruling. Rather than answering, Defendants filed their sixth motion to quash and a motion to dismiss. On June 10, 2024, the Court denied Defendants' sixth motion to quash and mailed Notice of its ruling to Defendants on that same day.

On August 19, 2024, Defendants filed a Declaration Regarding Meet and Confer. On October 18, 2024, Defendants filed the demurrer and motion to strike now at issue.

The demurrer and motion to strike are procedurally defective for at least two reasons.

First, and most significantly, the demurrer was filed after the deadline for demurrer. California Code of Civil Procedure § 430.40(a) provides: "A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint, demur to the complaint." The same applies to a motion to strike which must be brought within the time allowed to respond to a pleading. CCP § 435 (b)(1).

If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time to file a responsive pleading by filing and serving, on or before the date on which the demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due. (CCP § 430.41(a).)

Here, the complaint was served by publication on no later than October 9, 2023. Assuming Defendants contend that the deadline for demurrer is stayed or extended due to the filing of their many motions to quash, the Court issued a ruling on the last such motion on June 10, 2024. Even if the declaration of the demurring parties grants an additional 30 days, the deadline for demurrer was July 10, 2024. Defendants’ demurrer and motion to strike was served on October 16, 2024, well beyond any applicable extensions.

Second, the demurrer and motion to strike were not properly served. C.C.P. §1010.6(b)(3) states, “Before first serving a represented person electronically, the person effecting service shall confirm the appropriate electronic service address for the counsel being served.” Defendants did not serve the demurrer and motion to strike on the electronic address that had been confirmed by Plaintiff’s counsel.

On or about October 16, 2024, Defendants served Plaintiff’s counsel with three 3) Documents: 1) Demurrers to Complaint with Motion to Strike; 2) Demurrers to Complaint; and 3) Motion to Strike. See Exhibit “E” attached to the Youmtobian Decl. These documents were not mailed to Plaintiff’s counsel’s office or properly served via electronic service. See Youmtobian Decl. at ¶11. Defendants’ Demurrer and Motion to Strike were only electronically served to mn@novaklawfirm.com. However, as previously addressed in court, this address is not the proper electronic address to serve documents on Plaintiff’s counsel. Plaintiff raised this issue with the Court on May 14, 2024, hearing where the Court requested that Defendants’ counsel properly serve Plaintiff’s counsel. Defendants’ counsel then electronically served Plaintiff with a copy of Defendants’ Motion to Dismiss at the email address of service@novaklawfirm.com, which is the proper electronic address for Plaintiff’s counsel. See Exhibit “F” attached to the Youmtobian Decl.

Thus, the demurrer and motion to strike failed to give sufficient notice and are untimely. Accordingly, the demurrer is overruled and the motion to strike denied. Defendants are ordered to answer the Complaint within 30 days of this order or be subject to default judgment.

If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept27@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

[1] This demurrer and motion to strike first appeared on the Court’s calendar for October 21, 2024. At that time, no one appeared for the hearing, and the Court adopted its tentative, which was substantively similar to this tentative. In any event, given that the October 21 hearing date was reserved but not used, the Court now vacates its October 21, 2024, order adopting the tentative at that time.