Judge Linda S. Marks, Case 2020-01139897 2022-12-05 Tentative Ruling

Judge: Linda S. Marks, Case: 2020-01139897, Date: 2022-12-05 Tentative Ruling

1. Demurrer to Amended Complaint filed by Krishna Gulaya on 4/29/22
2. Motion for Judgment on the Pleadings filed by Thomas McIntosh, and Theodore McIntosh on 5/3/22
3. Motion for Judgment on the Pleadings filed by Brian Sardina on 6/30/22

Demurrer to FAC filed by Krishna Gulaya (ROA 88)

On 10/31/22, the Court continued the demurrer to 12/5/22, ordered Plaintiff and Defendant, Krishna Gulaya (“Defendant Gulaya”) to meet and confer, and ordered Defendant 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. (ROA 158.) Defendant Gulaya, was also ordered to give notice. (Ibid.)

It does not appear that Defendant Gulaya gave notice. However, it appears that Plaintiff participated in some manner in the meet and confer ordered by the Court.

On 11/17/22, Defendant Gulaya filed and served, by mail and email, a “Declaration of Krishna Gulaya Re Meet and Confer Per Order of the Court” that appeared to be missing pages. (ROA 163.)

On 11/28/22, Defendant Gulaya filed another “Declaration of Krishna Gulaya Re Meet and Confer Per Order of the Court” which appears to include the previously missing pages. Defendant Gulaya provides that “[o]n or about November 9, 2022, pursuant to Plaintiff’s request, [Defendant Gulaya] provided [Plaintiff] with the copies of the First Amended Complaint (FAC1), demurrer to the FAC1 and my declaration re meet and confer dated March 18, 2022.” (Declaration of Krishna Gulaya, ¶ 2.) FAC1 is attached as Exhibit “A.” (Id., ¶ 4.) It also states, “[o]n the same day Plaintiff emailed me a different copy of the First Amended Complaint ROA #20 (FAC2).” (Id., ¶ 3.) The declaration indicates that FAC1 was served on Defendant Krishna Gulaya. (Id., ¶ 6.)

Based on the foregoing, it has become clear that the FAC that Defendant Gulaya was served with (Ex. “A” to Declaration of Krishna Gulaya), is not the FAC that is on file with the Court (ROA 20). The operative complaint is the one that is on file with the Court, and was filed on February 14, 2022.

The Court’s independent review reveals that the FAC in Exhibit “A” attached to the Defendant Gulaya’s declaration, and the FAC filed with the Court (ROA 20), have significant differences. While the face pages of both are identical, and have the file-stamp of February 14, 2022, the FAC in Exhibit “A” has eleven (11) causes of action listed in the caption as opposed to the 15 causes of action listed in the FAC filed with the Court. In addition, the former FAC is dated 2/14/22 on page 2, whereas the latter is dated 1/31/22 on page 2. The Verification attached to the FAC in Exhibit “A” attached to the “Declaration of Krishna Gulaya Re Meet and Confer Per Order of the Court,” is dated February 22, 2022, after the file-stamp on the face page, whereas the Verification attached to the FAC filed with the Court is dated 2/10/22. It thus appears that Plaintiff may have filed a FAC with the Court on 2/14/22, and thereafter modified the FAC and served a modified FAC on Defendant Gulaya. Neither FAC appears to have been properly served on Defendant Gulaya. The FAC filed with the Court does not appear to have been served on Defendant Gulaya, and the purported FAC served on Defendant Gulaya is not on file with the Court.

“The pleadings allowed in civil actions are complaints, demurrers, answers, and cross-complaints.” (Code Civ. Proc. § 422.10.) Code of Civil Procedure section 465 states, “[e]xcept with leave of the court, all pleadings subsequent to the complaint, together with proof of service unless a summons need be issued, shall be filed with the clerk or judge, and copies thereof served upon the adverse party or his or her attorney.”

Service of an amended complaint is not complete until it is filed. (City Properties Co. v. Meacham (1917) 33 Cal.App. 696, 696-697 [finding that the time to answer an amended complaint had not expired until Plaintiff had served and filed an amended complaint].)

Here, the FAC that is filed with the Court (ROA 20) does not appear to have been served on Defendant Gulaya. As Defendant Gulaya’s demurrer is not directed towards the FAC that is on file with the Court, and is directed to an unfiled amended complaint, any ruling on such unfiled complaint would appear to be premature or unripe, and akin to issuing an advisory opinion. “A court may not issue rulings on matters that are not ripe for review. [Citation.]” (San Bernardino Public Employees Assn. v. City of Fontana (1998) 67 Cal.App.4th 1215, 1226.)

Tentative Ruling: The Court declines to rule on the demurrer by Defendant Gulaya that is directed a pleading that is not on file with the Court.

Defendant Gulaya to give notice.

Notice to Plaintiff: The pleading that is on file with the Court may not have ever been served on the Defendants.

Motion for Judgment on the Pleadings filed by Thomas McIntosh and Theodore McIntosh (ROA 94). Motion for Judgment on the Pleadings filed by Brian Sardina (ROA 113)

On 10/31/22, the Court continued the demurrer to 12/5/22, ordered Plaintiff and the McIntosh Defendants and Defendant Sardina to meet and confer, and ordered Attorney McIntosh to file a declaration 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. (ROA 158.)

As of 11/29/22 at 12:00 p.m., no declaration by Attorney McIntosh appears in the Court’s file.

Tentative Ruling: The Court ORDERS the parties to comply with the Court’s 10/31/22 Minute Order. As part of the meet and confer discussion, the Court expects the parties to determine whether the motions are directed at the First Amended Complaint that is on file with the Court.

Should Attorney McIntosh fail to timely file a declaration, the Court will take the motions off calendar.

Attorney McIntosh to give notice.