Judge: Martha K. Gooding, Case: 22-01287755, Date: 2023-05-22 Tentative Ruling

1) Demurrer to Amended Complaint

2) Motion to Strike Portions of Complaint

3) Case Management Conference

Defendants Laila Pence and Eldon Dryden Pence III (collectively, “Defendants”) have filed both a Demurrer to, and a Motion to Strike (“MTS”) portions of, Plaintiff’s First Amended Complaint.  The Demurrer and MTS are collectively referred to as the “Motions.”

No oppositions were filed.  Both Motions are continued to July 17, 2023, at 1:30 p.m. in Department C31. 

The Motions were e-served.  However, the sender’s email address was not included on the proof of service, as required by section 1013b(b)(1) of the Code of Civil Procedure (CCP”), which provides that proof of electronic service shall include “[t]he electronic service address and the residence of business address of the person making the electronic service.” 

Given that no oppositions to the Motions were filed, the Court is unable to verify that proper notice was given.

Accordingly, Defendants are ordered to file amended proofs of service showing service that is compliant with the California Rules of Court and Code of Civil Procedure, no later than 5 court days before the continued hearing date.

In addition, if Defendants wish the Court to consider the merits of their Motions at the continued hearing, they are ordered to file and serve amended declarations showing compliance with CCP sections 430.41 and 435.5.

CCP section 430.41 provides in part (emphasis added):

(a) Before filing a demurrer pursuant to this chapter, 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. 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.

(See CCP § 435.5 re motions to strike.)  Counsel’s declarations filed in support of the demurrer and motion to strike state only that he met and conferred regarding the original complaint, before the FAC was filed. (Markun Decl., ¶¶ 4-5.)

Defendants are ordered to give notice.