Judge: Loren G. Freestone, Case: 37-2022-00048401-CU-PO-CTL, Date: 2023-08-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - August 10, 2023

08/11/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2022-00048401-CU-PO-CTL THATCHER VS AURORA BEHAVIORAL HEALTH SYSTEM [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendants Aurora -San Diego LLC, Signature Healthcare Services LLC, Christopher Benbow, Portia Griffin, Alain Azcona, and Christine Kwiat's demurrer and motion to strike Plaintiff Silvena Thatcher's first amended complaint are CONTINUED to September 29, 2023 at 10:30am.

Before 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, subd. (a). A similar meet and confer requirement applies to motions to strike. (Code Civ. Proc., § 435.5, subd. (a).) A court cannot overrule a demurrer or deny a motion to strike based solely on the lack of an adequate meet and confer. (Code. Civ. Proc., §§ 430.41, subd. (a)(4); 435.5, subd. (a)(4).) However, 'trial courts are not required to ignore defects in the meet and confer process.' (Dumas v. Los Angeles County Bd.

of Supervisors (2020) 45 Cal.App.5th 348, 355, fn. 3.) If the court '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.' (Ibid.; accord Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 7:97.27.) Here, on May 2, 2023, counsel for Defendants sent a meet and confer letter addressing various purported issues with the complaint, including (1) the fact a death certificate was not attached to Thatcher's successor-in-interest declaration under CCP 377.32, (2) the multiple counts in the complaint that Defendants viewed as an attempt to improperly split a cause of action, (3) the sufficiency of the dependent adult abuse allegations, (4) the sufficiency of the fraud/misrepresentation allegations, and (5) the sufficiency of the allegations supporting the prayers for punitive damages and attorney fees. The letter asked counsel for Thatcher to advise whether Thatcher would be willing to file a second amended complaint, and if not, to call so that the parties could telephonically meet and confer as required before filing the demurrer and motion.

On May 5, 2023, the associate attorney representing Thatcher responded that he would 'be obtaining a certified copy of the death certificate and refiling the declaration in short order.' Counsel for Defendants did not respond to confirm whether Thatcher was willing to amend the complaint Calendar No.: Event ID:  TENTATIVE RULINGS

2970987  39 CASE NUMBER: CASE TITLE:  THATCHER VS AURORA BEHAVIORAL HEALTH SYSTEM  37-2022-00048401-CU-PO-CTL to address any of the other concerns that had been raised, nor confirm whether a response to those other points was forthcoming, nor wait a few more days to receive the requested phone call. Instead, a mere two hours later, Defendants filed their demurrer and motion to strike. (Despite having just received an email stating that the issue would be corrected, one of the bases for the demurrer was an insufficient successor-in-interest declaration.) Within a half-hour, the lead attorney for Thatcher responded that the associate's email was simply 'addressing one of the issues,' and that they had not been given 'sufficient time to respond to the substance of [the] May 2, 2023 correspondence.' As such, he requested that the hearing be taken off calendar. Counsel for Defendants refused.

Counsel for Thatcher thereafter sent a draft second amended complaint that was intended to address 'the majority if not all of the issues raised on demurrer.' He stated that 'the most efficient course would be for the parties to stipulate to the filing' and that 'challenges to the SAC could then be made.' Counsel for Defendants would not stipulate.

In their reply, Defendants state that there 'has been no failure to meet and confer; there has only been Plaintiff's counsel's failure to face up to the deficiencies in his case and to modify his complaint accordingly.' Yet Defendants do not explain why they would not stipulate to the filing of the proposed SAC, nor how the proposed SAC remains deficient. There is insufficient information that Defendants ever met and conferred with Thatcher regarding this proposed pleading. But what is clear is that the record reflects a willingness to modify the pleadings, as opposed to maintaining the complaint in its current form. The proposed SAC may address the concerns raised in the pleading challenges here.

In light of the above, good cause exists to continue the demurrer and motion to strike and order the parties to meet and confer in good faith. The parties are ordered to discuss (1) whether the proposed SAC addresses all of Defendants' concerns set forth in their March 2, 2023 letter, (2) if not, what deficiencies remain and whether they can be addressed by way of further amendments to the proposed SAC, and (3) even if the parties are not able to informally resolve all of their disagreements, whether Defendants will stipulate to the filing a SAC to at least narrow the scope of the issues to be resolved by the court.

If the parties reach an agreement, they may submit a stipulation to permit the filing of the SAC. If there is no stipulation, or agreement on how to proceed after the meet and confer, then the parties shall file supplemental declarations detailing their meet and confer efforts no later than 9 court days before the continued hearing. No other additional briefing will be permitted in connection with the demurrer and motion to strike. If there is no stipulation, Thatcher may file a motion to amend the complaint as set forth in the proposed SAC.

Calendar No.: Event ID:  TENTATIVE RULINGS

2970987  39