Judge: Mark E. Windham, Case: 22STLC05009, Date: 2023-01-09 Tentative Ruling

Case Number: 22STLC05009    Hearing Date: January 9, 2023    Dept: 26

JNS Consultants, Inc. v. Newkirk, et al.

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant William H. Newkirk dba the Law Office of William H. Newkirk’s Demurrer to the First Amended Complaint is OVERRULED. DEFENDANT IS TO FILE AN ANSWER TO THE FIRST AMENDED COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

Plaintiff JNS Consultants, Inc. (“Plaintiff’) filed this action against Defendant William H. Newkirk dba the Law Office of William H. Newkirk on August 1, 2022. Defendant filed a Demurrer to the Complaint on September 26, 2022. Prior to the hearing on the first Demurrer, Plaintiff filed the First Amended Complaint on October 13, 2022.

Defendant filed the instant Demurrer to the First Amended Complaint on November 14, 2022. Plaintiff filed an opposition on December 21, 2022, and Defendant replied on December 30, 2022.

Discussion

The Demurrer is not accompanied by a proper meet and confer declaration as required by Code of Civil Procedure section 430.41. Defendant wrongly contends that it was not required to meet and confer regarding the First Amended Complaint because it met and conferred with Plaintiff regarding the original Complaint. The statute, however, specifically requires subsequent meet and confer efforts for each amended pleading. (Code Civ. Proc., § 430.341, subd. (a) [“If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.”].) Defendant is admonished for failing to meet and confer and warned that failure to do so in the future may result in the improperly filed Demurrer being struck.

This action concerns an oral consulting agreement between the parties for expert witness services provided by Jay N. Schapira, M.D. (FAC, ¶4.) Plaintiff alleges it is the real party in interest because it invoiced Defendant for the services and was the entity to which the payments were due. (Ibid.) The Complaint does not allege when the oral contract was entered into, but the first communication between the parties was on April 5, 2021. (Id. at Exh. 1, p. 1.) Plaintiff billed Defendant from April 2021 to March 2022. (Id. at ¶¶9-16 and Exhs. 2-6.) Defendant did not pay the last two invoices for services, in the total amount of $22,125.00. (Id. at ¶¶16-17 and Exh. 7.)

Defendant’s Demurrer does not address each of the causes of action set forth in the First Amended Complaint. Instead, it broadly alleges that the First Amended Complaint fails to allege facts sufficient to state any of the causes of action. (Demurrer, p. 2:3-6.) The grounds set forth in the Demurrer are that the payments due under the agreement have been made in full, the claims are barred by the statute of frauds, and that Plaintiff lacks standing.

First, it is black letter law that Defendant cannot dispute the factual allegations in the First Amended Complaint regarding what payments have been made to Plaintiff on demurrer. (See Akhlaghpour v. Orantes (2022) 2022 WL 17592463, at *3.) Such disputes are not a valid basis for demurrer. Second, the statute of frauds argument is unintelligible. The Demurrer does not cite to specific allegations in the First Amended Complaint that indicate the parties’ agreement falls within the categories set forth in Civil Code section 1624. (Demurrer, pp. 4:12-5:14.) Defendant only broadly cites to the “Plaintiff’s complaint addendum” and then quotes the Complaint without citation. (Id. at pp. 4:26-5:2.) Finally, the Demurrer does not explain why Plaintiff lacks standing when it is alleged to be the entity with which Defendant contracted for services and to whom the payments were to be made. This is not only indicated in the allegations, but in the attached invoices. (Compl., ¶4 and Exhs. 3-7.) Defendant provides no analysis or authority to show why Plaintiff is not the real party in interest based on these allegations and attached exhibits. (See Demurrer, pp. 5:16-6:14.)

Conclusion

Therefore, Defendant William H. Newkirk dba the Law Office of William H. Newkirk’s Demurrer to the First Amended Complaint is OVERRULED. DEFENDANT IS TO FILE AN ANSWER TO THE FIRST AMENDED COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

Plaintiff to give notice.