Judge Linda S. Marks, Case 2020-01139897 2022-10-31 Tentative Ruling

Judge: Linda S. Marks, Case: 2020-01139897, Date: 2022-10-31 Tentative Ruling

1. Demurrer to Amended Complaint filed by California Bar, and Naji Khatib on 4/21/22
2.

2. Demurrer to Amended Complaint filed by Krishna Gulaya on 4/29/22
3.

3. Motion for Judgment on the Pleadings filed by Thomas McIntosh, and Theodore McIntosh on 5/3/22
4.

4. Motion for Judgment on the Pleadings filed by Brian Sardina on 6/30/22
5.

5. Case Management Conference

Motion No. 1: Demurrer to FAC filed by California Bar and Naji Khatib (ROA 78)

Defendants The State Bar of California and Naji Khatib (the “State Bar Defendants”) move for an order sustaining the demurrer to the First through Eleventh Causes of Action of the First Amended Complaint filed by Plaintiff, David Elias (“Plaintiff”).

Failure to oppose the demurrer may be construed as having abandoned the claims. (See Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20 [“Plaintiffs did not oppose the County's demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue”].)

Here, Plaintiff did not file an opposition. Therefore, the Court construes Plaintiff’s failure to oppose the State Bar Defendants’ demurrer as an abandonment of his claims.

In addition, Plaintiff’s claims appear to be barred by immunities set forth in Government Code sections 815(a), 818.4, and 821.2.

Further, Plaintiff fails to plead compliance with the California Government Claims Act and Government Code sections 905, and 945.4.

The Court notes that the demurrer addresses the First through Eleventh Causes of Action, leaving the Twelfth through Fifteenth Causes of Action remaining in the FAC against the State Bar Defendants.

Tentative Ruling: The Moving Parties’ Demurrer to the First through Eleventh Causes of Action is SUSTAINED, without leave to amend.

The State Bar Defendants to give notice.

Motion No. 2: Demurrer to FAC filed by Krishna Gulaya (ROA 88)

Defendant, Krishna Gulaya moves for an order sustaining the demurrer to the First Cause of Action for Fraud, Second Cause of Action for Breach of Contract, Third Cause of Action for Senior Abuse and Oppression, Fourth Cause of Action for Breach of Settlement Agreement, and Fifth Cause of Action for Breach of Fiduciary Duty of the FAC. The demurrer is CONTINUED to [INSERT DATE AND TIME].

Code of Civil Procedure section 430.41(a) provides that “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer . . . .” In addition, 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).)

Code of Civil Procedure section 430.41, subdivision (a)(3) requires that the demurring party file and serve with the demurrer a declaration stating either “[t]he means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer,” or that “the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.”

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.” Thus, the court may order a conference pursuant to Code of Civil Procedure section 430.41(c) before ruling on a demurrer where the other party refused to meet or failed to meet in good faith. Pro per litigants are held to the same standards as attorneys. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.)

The Declaration of Krishna Gulaya, counsel for herself and Defendant, Sunil Gulaya, establishes compliance with the meet and confer requirement of Code of Civil Procedure section 430.41 as counsel sent a meet and confer letter discussing the grounds for demurrer, along with citation to the law on March 18, 2022, that on March 22, 2022, Plaintiff “called and refused to discuss the issues and disconnected,” and that counsel attempted to call back several times that same day, but it went to voice mail and counsel could not leave a message. (Declaration of Krishna Gulaya, ¶¶ 1-4, Ex. A.) Plaintiff does not respond to the assertion for Plaintiff’s refusal to meet and confer, let alone provides a justification for refusing to meet and confer.

Plaintiff’s apparent refusal to meet and confer when Plaintiff has filed a complaint purporting to assert fifteen causes of action warrants the Court ordering a meet and confer conference between the parties.

The Court also has concerns as to whether the demurrer is directed to the operative FAC that is filed with the Court. (See ROA 20.) The Court notes that first five causes of action of the FAC are not designated in the manner stated in the demurrer.

Tentative Ruling: The demurrer is CONTINUED to December 5, 2022, 10:00 am, Department C25. The Court ORDERS Plaintiff and Defendant, Krishna Gulaya to schedule a telephonic or in-person conference to meet and confer to occur within the next 14 days and discuss the issues raised in the demurrer and letter dated March 18, 2022, and Plaintiff’s arguments raised in the opposition. The Court expects that the parties will meet and confer in good faith.

Defendant, Krishna Gulaya to file a declaration no later than nine (9) court days before the continued to hearing date describing the meet and confer efforts, and the status of the issues, clearly stating what issues remain for the Court to resolve, or if all issues have resolved, providing that the demurrer is being taken off calendar.

No other briefing will be allowed.

Defendant, Krishna Gulaya to give notice.

Motion No. 3: Motion for Judgment on the Pleadings filed by Thomas McIntosh and Theodore McIntosh (ROA 94)

Motion No. 4: Motion for Judgment on the Pleadings filed by Brian Sardina (ROA 113)

Defendants, Thomas McIntosh and Theodore McIntosh (the “McIntosh Defendants”) move for judgment on the pleadings as to the First Cause of Action for Fraud, Second Cause of Action for Violation of Settlement Agreement / Breach of Contract, Third Cause of Action for Senior Abuse, Fourth Cause of Action for Breach of Settlement Agreement; and Fifth Cause of Action for Breach of Fiduciary of Plaintiff’s verified Complaint pursuant to Code of Civil Procedure section 438.

Defendant, Brian Sardina moves for judgment on the pleadings as to the First Cause of Action for Fraud, Second Cause of Action for Violation of the Settlement Agreement / Breach of Contract, Third Cause of Action for Senior Abuse, Fourth Cause of Action for Breach of Settlement Agreement, and Fifth Cause of Action for Breach of Fiduciary of Plaintiff’s complaint pursuant to Code of Civil Procedure section 438.

Initially, the Court notes that the Notices of Motion provide that the motion is brought pursuant to Code of Civil Procedure section 438.

Code of Civil Procedure section 439(a) provides that “[b]efore filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.” (Code Civ. Proc. § 439(a).)

As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to judgment and identify with legal support the basis of the claims. The party who filed the pleading shall provide legal support for its position that the pleading is not subject to judgment, or, in the alternative, how the pleading could be amended to cure any claims it is subject to judgment. (Code Civ. Proc. § 439(a)(1).)

Further, the moving party shall file a declaration with the motion stating either “(A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion for judgment on the pleadings, and that the parties did not reach an agreement resolving the claims raised by the motion for judgment on the pleadings. (B) That the party who filed the pleading subject to the motion for judgment on the pleadings failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.” (Code Civ. Proc. § 439(a)(3).)

Code of Civil Procedure section 439 also states, “[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 that a conference be held.” (Code Civ. Proc. § 439(c)(2).)

Here, Thomas M. McIntosh states that Plaintiff “did not respond to my request to meet and confer or did not otherwise meet and confer in good faith regarding the deficiencies pointed out in my letter of March 31, 2022.” (Declaration of Thomas M. McIntosh, ¶ 3, Ex. A; ROA 94.) Counsel provides that the letter “directed Plaintiff to each and every deficiency that I thought needed to be addressed and supplied the applicable case law to support my position.” (Ibid.) Counsel additionally provides that prior to his meet and confer letter, he made two attempts by telephone on March 15, 2022, and March 22, 2022 to speak to Plaintiff and arrange a time to discuss the complaint, but that the number listed on the complaint would not allow him to leave a message as the voicemail was always full. (Id., ¶ 4.) Based on the foregoing, the McIntosh Defendants establish that Plaintiff did not respond to their meet and confer letter of March 31, 2022, and that they were unable to contact Plaintiff by phone.

Defendant Thomas McIntosh is the attorney for Defendant Brian Sardina. For Defendant Sardina’s motion for judgment on the pleadings, McIntosh similarly provides that he made a declaration regarding his compliance with the meet and confer requirements imposed by CCP section 439(a), and that Plaintiff did not respond to his request to meet and confer or did not otherwise meet and confer in good faith regarding deficiencies raised in counsel’s letter of May 31, 2022. (Declaration of Thomas M. McIntosh, ¶ 3; ROA 113.) Attorney McIntosh also provides that prior to the meet and confer letter, he made three attempts by telephone on May 12, 2022, May 22, 2022, and May 30, 2022, to speak with and arrange a time to discuss the complaint and meet and confer , but that the number listed on the complaint would not allow him to leave a message as the voicemail was always full. (Id., ¶ 4.)

Thus, the parties have not discussed the issues set forth in the demurrer and the letters dated March 31, 2022 as to the McIntosh Defendants, and May 31, 2022 as to Defendant Sardina.

In addition, the Court has concerns about whether the McIntosh Defendants and Defendant Sardina are addressing the operative FAC filed with the Court. The first through fifth causes of action identified by the moving papers are inconsistent with the FAC. Moreover, the motions argue the following: The face page of Plaintiff’s complaint lists eleven causes of action, but the body of the complaint stops at only six, on page 15 and then proceeds to the prayer. This creates another major area of confusion to the Defendants who cannot respond to causes of action that contain no internal allegations or facts to support these theories, there are no facts contained herein about #7 Civil Conspiracy, #8 Conversion, #9 IIED, #10 Intentional and Negligent Misrepresentation, #11 Negligence. (McIntosh Defendants’ Motion for Judgment on the Pleadings, ¶ 41, 12:15-20, ROA 94; Defendant Brian Sardina’s Motion for Judgment on the Pleadings, ¶ 42; 13:1-8, ROA 113.)

The FAC that was filed with the Court and is in the Court’s docket does not match this description. (See ROA 20.) For example, the face page of the FAC lists ten causes of action, not eleven, and the body of the FAC does not stop at six.

In reviewing the Court’s files, it appears that Plaintiff attempted to file a “First Amended Complaint” two more times after filing the operative FAC on February 14, 2022.

Based on all of the foregoing, it appears to the Court that a meet and confer conference is warranted.

Tentative Ruling: The Court ORDERS Plaintiff and the McIntosh Defendants and Defendant Sardina to schedule a telephonic or in-person conference to meet and confer to occur within the next 14 days, and to discuss the issues raised, and the meet and confer letters dated March 31, 2022, and May 31, 2022, and Plaintiff’s arguments raised in the opposition. The Court expects that the parties will meet and confer in good faith. The two motions for judgment on the pleadings are CONTINUED to December 5, 2022, 10:00 am, Department C25.

Attorney McIntosh to file a declaration no later than nine (9) court days before the continued to hearing date describing the meet and confer efforts, and the status of the issues, clearly stating what issues remain for the Court to resolve, or if all issues have resolved, providing that the motions are being taken off calendar.

No further briefing is allowed.

Attorney McIntosh to give notice.

As a final note, the Court reminds the parties to comply with California Rules of Court, rule 2.253 concerning service on a self-represented party by electronic means.