Judge Mark C. Kim, Case 22LBCV00019 2023-04-18 Tentative Ruling

Judge: Mark C. Kim, Case: 22LBCV00019, Date: 2023-04-18 Tentative Ruling

Case Number: 22LBCV00019 Hearing Date: April 18, 2023 Dept: S27

1. Background Facts

Plaintiff, Ariel Knight filed this action against Defendants, Robert Louis Wood, Jacqueline Amy Wood, The Wood Family Trust, Robert Louis Wood and Jacqueline Amy Wood as Trustees, and Henry Perry for damages arising out of the parties’ landlord-tenant relationship.

2. Ruling on Demurrer and Motion to Strike Directed at Original Complaint

The Court was originally scheduled to hear a demurrer and motion to strike directed to the original complaint on 9/08/22. The Court found the parties’ meet and confer efforts deficient, and continued the hearing to 10/20/22. The Court ordered the parties, if they were unable to resolve their issues, to file briefs and declarations at least two weeks prior to the continued hearing date. Two weeks prior to the continued hearing date fell on 10/06/22. Prior to the continued hearing, neither party filed an additional brief. The Court therefore issued a tentative ruling indicating it assumed the parties had resolved their issues, and it was taking the matters off calendar.

On 10/20/22, the parties appeared and indicated they had NOT resolved their issues. The Court therefore continued the hearing to 11/17/22 and ordered the parties to file a joint statement concerning any remaining issues on or before 11/04/22.

Prior to the 11/04/22 hearing, the Court issued a ruling harshly admonishing Plaintiff’s attorney for failing to fully participate in the proceedings. The Court ultimately adopted its ruling, which was, in pertinent part, as follows:

On 11/02/22, Defense Counsel filed a declaration concerning the status of the demurrer and motion to strike. In her declaration, Counsel states that she and Plaintiff’s attorney met and conferred over the phone, and she agreed to prepare a joint statement, which she did. However, despite repeated attempts to receive the statement back, Plaintiff’s attorney never responded.

The proposed joint statement, attached as Exhibit C to Counsel’s declaration, includes a series of amendments to which the parties agreed, and an indication that Defendants would take the demurrer off calendar if Plaintiff filed an amended complaint prior to the hearing. To date, Plaintiff has not done so.

The Court finds Plaintiff’s attorney has failed to respond to meet and confer attempts, failed to respond to an attempt to draft a joint statement, and failed to file a timely amended complaint. The Court notes that this is the original complaint, and sustaining the demurrer without leave to amend would be too harsh of a penalty to Plaintiff as a result of Plaintiff’s attorney’s conduct. The Court will therefore sustain the demurrer with leave to amend. The Court harshly admonishes Plaintiff’s attorney that further failures to participate in necessary proceedings in connection with the litigation could result in imposition of sanctions, including dismissal of the lawsuit.

The demurrer is sustained on all grounds asserted. The motion to strike is granted on all grounds asserted. Plaintiff is ordered to file an amended complaint within ten days. Defendants must file a responsive pleading within the statutory time thereafter. If Defendants choose to challenge the amended complaint, Plaintiff MUST actively participate in the meet and confer process; a failure to do so will not be tolerated by the Court.

3. Demurrer to First Amended Complaint

On 12/12/22, Plaintiff filed a First Amended Complaint. On 1/12/23, Defendants filed a demurrer and motion to strike directed at the FAC. The demurrer and motion to strike are accompanied by the Declaration of Defense Counsel, who declares Plaintiff’s attorney, during meet and confer, agreed that the FAC was deficient and offered to file a Second Amended Complaint.

To date, no SAC has been filed. Any opposition to the demurrer and motion to strike were due on or before 4/05/23. Plaintiff filed untimely opposition to the demurrer and motion to strike on 4/07/23. The opposition does not indicate Plaintiff concedes the deficiencies in their FAC, and instead argues the FAC is sufficiently pled in all regards. The opposition does not include any declaration explaining why the position taken in opposition to the demurrer and motion is different from the position taken during meet and confer discussions.

The opposition also does not contain any declaration explaining why the opposition was not timely filed. The Court is considering the failure to timely file the opposition papers in connection with the prior untimely acts on the part of Plaintiff, which were detailed in connection with the ruling on the challenge to the FAC, discussed above.

The Court can, of course, refuse to consider the untimely opposition. CRC 3.1300(d). This is, however, an extremely harsh remedy. CRC 2.30(b) permits the Court to set an OSC re: sanctions whenever a party violates the Rules of Court. If Plaintiff wishes to have his untimely opposition considered, the Court will continue the hearing on the demurrer and motion to strike and require Plaintiff to file a declaration explaining why he stated in meet and confer that he would amend the complaint but instead is now opposing the demurrer on its merits. Additionally, the Court will set an OSC re: sanctions against Plaintiff’s attorney for Plaintiff’s failure to timely file the opposition papers. If Counsel opposes the OSC, he must file a declaration explaining not only why the opposition papers were not timely filed, but also why he did not actively participate in the meet and confer process or file timely papers in connection with his opposition to the demurrer to the FAC.

If Plaintiff does not wish to have his untimely opposition considered, then the demurrer will be sustained without leave to amend as to all causes of action and the motion to strike will be deemed moot.

4. Conclusion

Assuming the parties submit on the tentative ruling, the following will be the final ruling of the Court:

The hearing on the demurrer and motion to strike will be continued to Tuesday, 5/09/23 at 8:30 a.m. in Department S27. Plaintiff will be ordered to submit a declaration in support of his opposition, detailing the meet and confer efforts as discussed above, at least nine court days prior to the hearing. Defendants must file any reply at least five court days prior to the hearing.

The Court will also set an OSC re: sanctions for the same date and time, and Plaintiff will be ordered to file any papers in opposition to the OSC at least nine court days prior to the OSC date.

Defendants are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.