Judge: Mel Red Recana, Case: 23STCV07443, Date: 2024-05-22 Tentative Ruling
Case Number: 23STCV07443 Hearing Date: May 22, 2024 Dept: 45
|
JOHN VASQUEZ, Plaintiff, vs. THOMAS P. SCHMALZRIED, M.D., et
al., Defendants. |
Case
No.: 23STCV07443
DEPARTMENT 45 [TENTATIVE]
RULING Action
Filed: 04/05/2023 Trial
Date: 03/10/2025 |
Hearing date: May 22,
2024
Moving Parties:
Defendants Thomas P. Schmalzried, M.D., Thomas P. Schmalzried, a
Professional Corporation
Responding Party: Plaintiff
John Vasquez
Demurrer with Motion to Strike Complaint
The court CONTINUES the hearing for Defendants’
demurrer and motion to strike to ______________, at 8:30 a.m., in Department 45
to provide Defendants an opportunity to comply with the meet-and-confer
requirements of CCP §§ 430.41 and 435.5. The court orders Defendants to file
meet-and-confer declarations that comply with the requirements of CCP §§ 430.41
and 435.5 no later than seven court days prior to the continued hearing date.
Discussion
On July 14, 2023, defendants Thomas P. Schmalzried,
M.D., Thomas P. Schmalzried, a Professional Corporation (“Defendants”) filed a
demurrer and motion to strike.
CCP §
430.41(a) states, in relevant part: “Before filing a demurrer . . . 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.”
CCP §
430.41(a)(2) states, in relevant part: “The parties shall meet and confer at
least five days before the date the responsive pleading is due. If the parties
are not able to meet and confer at least five days prior to the date the
responsive pleading is due, the demurring party shall be granted an automatic
30-day extension of time within which to file a responsive pleading, by filing
and serving, on or before the date on which a demurrer would be due, a
declaration stating under penalty of perjury that a good faith attempt to meet
and confer was made and explaining the reasons why the parties could not meet
and confer.”
CCP §
430.41(a)(3) provides: “The demurring party shall file and serve with the
demurrer a declaration stating either of the following: (A) The means by which
the demurring party met and conferred with the party who filed the pleading
subject to demurrer, and that the parties did not reach an agreement resolving
the objections raised in the demurrer. (B) That the party who filed the
pleading subject to demurrer failed to respond to the meet and confer request
of the demurring party or otherwise failed to meet and confer in good faith.”
CCP § 435.5 provides the same meet-and-confer requirements
for a party filing a motion to strike.
The court finds Defendants fail to establish that they
complied with the meet-and-confer requirements under CCP §§ 430.41 and 435.5.
Defendants’ counsel’s declaration does not establish
that the parties met and conferred in person or by telephone as required under
CCP §§ 430.41(a) and 435.5.
The
court therefore CONTINUES the hearing for Defendants’ demurrer with motion to
strike to the date and time set forth above in Department 45 to provide
Defendants an opportunity to comply with the meet-and-confer requirements of
CCP §§ 430.41 and 435.5. The court orders Defendants to file meet-and-confer
declarations that comply with the requirements of CCP §§ 430.41 and 435.5 no
later than seven court days prior to the continued hearing date.
It is so ordered.
Dated: May 22, 2024
_______________________
MEL RED RECANA
Judge of the
Superior Court