Judge: Mark H. Epstein, Case: 23SMCV03700, Date: 2024-04-24 Tentative Ruling

Case Number: 23SMCV03700    Hearing Date: April 24, 2024    Dept: I

The court has reviewed the opposition filed April 19, 2024, but dated April 11, 2024.  In it, plaintiff states that it is willing to amend its complaint to address the issues in the demurrer.  According to plaintiff, counsel had to reschedule the meet and confer and had offered to extend the time for defendant to demur, but rather than reschedule, defendant simply demurred.

The court has not reviewed the proposed amendment, which was received 4/19/24 although plaintiff stated that it was filed on April 11, 2024—the date its opposition to the demurrer was due.  The court will discuss this with counsel.  The court is inclined to allow plaintiff to file the SAC and deem the demurrer moot, but the court will ask how plaintiff believes that addresses the grounds of the demurrer.  The court’s cursory review suggests that plaintiff has eliminated the personal liability claims against the individuals for most of the FEHA causes of action.  Further, it appears that the battery cause of action has been eliminated.  The court notes that if it allows the amendment and another demurrer is filed and sustained, the court might well deny leave to amend again.  If the court goes that route, the SAC must be filed no later than 4:00 pm on April 24, 2024.  Upon the filing, defendant will have 30 days to answer or otherwise respond to the SAC.

The court also notes that while one can waive the right to file an opposition, defendant is wrong to suggest that the failure to oppose a demurrer or other motion suggests that the motion should be granted.  The rule the defense cites applies only in appellate courts.  The case the defense cites simply does not stand for that proposition.  Even without an opposition, the court has an independent duty to determine if the motion has merit.  Of course, it is more likely that the court will so find if there is no opposition, and the failure to file an opposition waives oral argument by the opposing party, but it is not a concession that the motion has merit.