Judge: Martha K. Gooding, Case: 2021-01202836, Date: 2022-12-05 Tentative Ruling

1) Demurrer to Cross-Complaint

2) Status Conference

The demurrer by Cross-Defendant Southwest Inspection & Testing, Inc. (“Cross-Defendant” or “Southwest”) to the Cross-Complaint filed by Defendant and Cross-Complainant McWhirter Steel, Inc. (“Cross-Complainant”) is OVERRULED.  Cross-Defendant is ordered to file and serve its Answer to the Cross-Complaint within 15 days.

As an initial matter, the Court denies Cross-Defendant’s request for judicial notice of the deposition transcript of Vicente Galindo. The transcript was not attached to the request.  Nor is there any authority for a court to take judicial notice of the truth of a demurring party’s statements as a ground for demurrer.  A demurrer may not be turned into an evidentiary hearing under the guise of judicial notice. Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal. App. 3d 369, 374. 

The Court also notes that the request for judicial notice was not served on Cross-Complainant.  [Bonnheim Decl. (ROA #188), ¶¶ 4, 6-8.]

Procedural Deficiencies

A demurrer must be filed 30 days after service of the cross-complaint and set for hearing “not more than 35 days following the filing of the demurrer or on the first date available to the court thereafter.”   Code Civ. Proc. § 430.40(a); CRC 3.1320(d).  But the court has the discretion to consider an untimely demurrer.  Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.  Here, the Court exercises its discretion to consider Southwest Inspection’s demurrer.

The requirements for filing a demurrer are well established.  The papers filed in support of a demurrer must include at least the following:

• The demurrer itself;

• A notice of hearing on the demurrer; and

• A memorandum in support of the demurrer.

CRC 3.1112(a), 3.1320(c).

A demurrer must distinctly specify the grounds of objection to the challenged pleading.  A court may disregard a demurrer that does not comply with this requirement. Code Civ. Proc. § 430.60, CRC 3.1320(a). 

Cross-Defendant’s purported “demurrer” does not include either a notice of hearing (although the date/time/place hearing is shown on the caption page) or an actual demurrer.  It consists solely of a memorandum of points and authorities. There is no distinct statement of the grounds of objection to the Cross-Complaint. 

          Substantive Deficiency

Cross-Defendant’s demurrer is premised on deposition testimony of Vicente Galindo that is, according to Cross-Defendant, contrary to the allegations in the Cross-Complaint.  [Demurrer at 2-5.]

Because the Court declines to take judicial notice of the truth of Vicente Galindo’s described deposition testimony, there is no remaining substance to the demurrer.

For these reasons, the demurrer is overruled. 

Cross-Complainant is ordered to give notice.