Judge: Linda S. Marks, Case: 2022-01273995, Date: 2023-06-12 Tentative Ruling

1. Demurrer to Complaint

Defendant J.P. Morgan Chase filed a Demurrer to Plaintiff Shannon Inouye’s entire Complaint on the grounds that Plaintiff failed to join a necessary and indispensable party, David Cowdrick.

The Demurrer is untimely and Overruled.

Procedural Issues:

A demurrer must be filed “within 30 days after service of the complaint.” (Code Civ. Proc., § 430.40, subd. (a).)

The “demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a 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.” (Code Civ. Proc., § 430.41, subd. (a)(2), emphasis added.)

“The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension.” (Ibid.) “Any further extensions shall be obtained by court order upon a showing of good cause.” (Ibid.)

Here, Defendant was served with the Complaint by personal service on October 11, 2022. (ROA 14.) Accordingly, Defendant was required to file and serve a demurrer or declaration for a 30-day extension by November 11, 2022. (See Code Civ. Proc., § 430.40, subd. (a) and 430.41, subd. (a)(2).)

The Demurrer was not filed until December 15, 2022. Defendant did not file a declaration for the extension on November 11, 2022. Accordingly, the Demurrer is untimely.

It appears that Defendant filed a declaration on December 15, 2022 “pursuant to Code of Civil Procedure section 430.41.” As stated above, section 430.41 gives the demurring party an automatic 30-day extension to file the demurrer. However, for the extension to apply, the demurring party must file and serve the declaration “on or before the date on which a demurrer would be due.” (Code Civ. Proc., § 430.41, subd. (a)(2), emphasis added.)

Moreover, even if the declaration was timely filed on November 11, 2022, the extension only grants Defendant until December 12, 2022 to file the Demurrer. The Demurrer was not filed until December 15, 2022.

Merits

The Court does not need to get to the merits but will point out that based on the alleged causes of action, it does not appear that David Cowdrick is an indispensable party for the purpose of Plaintiff to assert her claims against Chase.   Likewise, it does not appear that these claims may be asserted against Cowdrick based on the facts alleged.  The better approach for Defendant to file a cross complaint and/or a Motion for Joinder if in fact there are viable claims to assert against Cowdrick.

The unopposed request for judicial notice is GRANTED, but not as to the truth of the matters asserted therein. (Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 400, as modified (Jan. 6, 2023), review denied (Mar. 29, 2023), emphasis in original [“Courts can take judicial notice of the existence, content and authenticity of public records and other specified documents, but do not take judicial notice of the truth of the factual matters asserted in those documents.”].)

Moving Defendant to file an Answer within the next ten (10) days.

Plaintiff to give notice.

2. Case Management Conference