Judge: Michael E. Whitaker, Case: 21STCV02031, Date: 2022-09-13 Tentative Ruling

Case Number: 21STCV02031    Hearing Date: September 13, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTIONS

Plaintiff Robert Ames sued defendant Trader Joe’s Company, Inc. based on injuries Plaintiff alleges he sustained at a grocery store owned and controlled by Defendant.  Defendant demurs to the second cause of action for “Personal Injury” and fourth cause of action for breach of contract in Plaintiff’s first amended complaint.  Defendant also moves to strike Plaintiff’s prayer for costs and attorney’s fees.  Plaintiff opposes the motion and demurrer. 

Plaintiff objects to the demurrer and motion to strike for Defendant’s failure to meet and confer in good faith prior to filing.  Specifically, Plaintiff represents that counsel for Defendant refused to accept Plaintiff’s phone calls in response to Defendant’s meet and confer letter.  (See Declaration of Robert Ames, ¶¶ 2, 3, 5-8.)  In reply, counsel for Defendant, Kristin A. Mathis, represents that prior counsel for Defendant who Plaintiff states refused to meet and confer with him, Steven Whang and Heather Bean, are no longer with the firm, and that she cannot confirm whether Plaintiff’s statements are true. 

Under Code of Civil Procedure sections 430.41 and 435.5, before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the subject pleading at least five days before the responsive pleading is due. (Code Civ. Proc. §§ 430.41, subd. (a); 435.5, subd. (a).) If the parties are not able to meet and confer at least five days prior to the date demurrer or motion to strike must be filed, the demurring/moving party shall be granted an automatic 30-day extension of time within which to file a demurrer or motion to strike, by filing and serving, on or before the date on which a demurrer or motion to strike 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.” (Code Civ. Proc. §§ 430.41, subd. (a)(2); 435.5, subd. (a)(2).)

Here, the Court finds Defendant has failed to establish compliance with the meet and confer requirements of  Sections 430.41, subdivision (a) and 435.5, subdivision (a).  In support of the motion and demurrer, Defendant has filed a letter to Plaintiff dated July 21, 2022, constituting Defendant’s attempt to meet and confer concerning the demurrer and motion to strike.  (See Declaration of Steven D. Whang, ¶2, Exhibit A.)  Because Sections 430.41 and 435.5 require the parties to meet and confer either in person or by phone, and because Defendant has not proffered any evidence to establish that the parties so met, Defendant has not shown that the parties sufficiently met and conferred, as required.  But failure to sufficiently meet and confer is not grounds to either overrule or sustain a demurrer or grant or deny a motion to strike.  (Code Civ. Proc., §§ 430.41, subd. (a)(4); 435.5, subd. (a)(4); Dumas v. Los Angeles County Board of Supervisors (2020) 45 Cal.App.5th 348, 355.)  

Instead, the Court continues the hearing to November 23, 2022 at 1:30 P.M. in Department 32 and orders a conference of the parties pursuant to Code of Civil Procedure sections 430.41 and 435.5, on or before October 28, 2022 to permit the parties an opportunity to resolve the issues informally and/or for Plaintiff to file and serve an amended complaint in advance of the continued hearing on November 23, 2022.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.