Judge Mel Red Recana, Case Number: 23STCV15898, Date: 2024-08-26 Tentative Ruling

The hearing on the demurrer and motion to strike filed by Defendants Juan Argueta and Blanca Argueta is CONTINUED to Thursday, September 26, 2024 at 8:30 AM in this department so that the parties can engage in sufficient meet and confer discussions. Defendants Juan Argueta and Blanca have not satisfied the meet and confer requirement pursuant to CCP §§ 430.41 and 435.5.

This is an action arising from alleged wrongful actions taken against Plaintiff Anne Devine (“Plaintiff”) during her residence at 145 South Avenue, Unit 57, Los Angeles, CA 90042 (the “Property”). On July 7, 2023, Plaintiff filed a Complaint against Defendants Juan Argueta, Blanca Argueta, and Does 1-100, inclusive, alleging causes of action for: (1) violation of Civ. Code § 1942.4; (2) tortious breach of the warranty of habitability; (3) private nuisance; (4) violation of Bus. & Prof. Code § 17200, et seq.; (5) negligence; (6) breach of covenant of quiet enjoyment; (7) intentional infliction of emotional distress; (8) negligence per se; (9) violation of the Consumer Legal Remedies Act; (10) violation of the Los Angeles Tenant Anti-Harassment Ordinance; (11) trespassing; (12) violation of Civ. Code § 1954; and (13) termination of estate.

On July 14, 2023, this action was reassigned to this department effective July 17, 2023.

On October 10, 2023, Defendants Juan Argueta and Blanca Argueta (collectively, “Defendants”) filed a demurrer to the seventh cause of action in the complaint, as well as a motion to strike.

On March 28, 2024, Plaintiff filed respective oppositions to the demurrer and motion to strike, to which Defendants filed reply briefs on August 1, 2024.

On August 5, 2024, the Court, on its own motion, continued the hearing on the demurrer and motion to strike from August 5, 2024 to August 26, 2024. (08/05/24 Minute Order.) The Clerk’s office mailed notice of the continuance to counsel for the parties on August 5, 2024.

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Ibid.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) In assessing a demurrer, a court can consider facts in exhibits attached to the complaint. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) Accordingly, “[w]hether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609-10.) A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc. § 430.10(e).) Although courts construe pleadings liberally, sufficient facts must be alleged to support the allegations plead to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on the party who filed the pleading subject to demurrer to show the court that a pleading can be amended successfully. (Ibid.)

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.” (Code Civ. Proc., § 435, subd. (b)(1).) A court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc. § 436, subd. (a).) A court may “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436, subd. (b).)

Before filing a demurrer or motion to strike, the moving party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (Code Civ. Proc., §§ 430.41, 435.5.)[1] “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer” or to grant or deny a motion to strike. (Code Civ. Proc., §§ 430.41, subd. (a)(4), 435.5.)

In support of the demurrer and motion to strike, Defendants’ counsel, Matthew C. Dingilian (“Dingilian”), provides identical declarations stating that “[p]ursuant to Code of Civil Procedure, Section 435.5, on or about September 26, 2023, [he] sent a meet and confer letter via email and certified mail that detailed [their] position on Plaintiff’s Complaint. We received no response from Plaintiff’s counsel to our letter. I further attempted to meet and confer with Plaintiff’s Counsel by calling their office directly on October 9, 2023. After I was transferred to voicemail box, I left a voicemail message regarding my attempt to meet and confer re issues in the Complaint. To date, I have not received a follow up call or email from Plaintiff’s Counsel.” (Dingilian Decls., ¶ 2.)

The Court finds that the meet and confer requirement has not been met as counsel did not meet and confer in person, by telephone, or by video conference. This department strictly enforces the meet and confer requirement prior to ruling on a demurrer or motion to strike. Meeting and conferring via letter does not satisfy the meet and confer requirement under CCP §§ 430.41 and 435.5.

Due to the insufficient meet and confer, the Court will not assess the merits of the demurrer and motion to strike at this time. The Court therefore CONTINUES the hearing on the demurrer and motion to strike to Thursday, September 26, 2024 at 8:30 AM in this department. The Court orders the parties to meet and confer in compliance with CCP §§ 430.41 and 435.5. Defendants are ordered to file a declaration satisfying the meet and confer requirement at least five court days before the continued hearing date.

[1] The prior versions of CCP §§ 430.41 and 435 were in effect from January 1, 2021 to December 31, 2023, which is during the time period the instant demurrer and motion to strike were filed. The prior version of the statutes required a meet and confer in person or via telephone. However, Defendants have only attempted to meet and confer with Plaintiff and have been unsuccessful in such attempts.

Superior Court of California

County of Los Angeles

Case No.: 23STCV15898