Judge: Michael E. Whitaker, Case: 21STCV14709, Date: 2022-09-08 Tentative Ruling

Case Number: 21STCV14709    Hearing Date: September 8, 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

Plaintiff Majisha Berry sued defendants Oscar Serrano dba Blessed Smog Check & Auto Repair and Orlando J. Castano Revocable Trust (collectively, “Defendants”) based on injuries Plaintiff alleges she sustained on property owned and controlled by Defendants.  Defendants demur to Plaintiff’s sole cause of action for negligence.  Defendants also move to strike paragraphs two and three of the complaint.  Plaintiff has not filed oppositions to the demurrer or motion to strike.

The Court notes that Defendants filed a single, combined demurrer and motion to strike portions of Plaintiff’s complaint. Instead, Defendants should have submitted a separate filing as to each form of requested relief. The Court will therefore order Defendants to pay an additional $60 in filing fees to the Clerk of the Court on or before September 29, 2022. (Gov. Code, § 70617, subd. (a).)

The Court finds that Defendants’ proof of service filed in connection with the demurrer and motion to strike does not indicate the date of service on Plaintiff either by mail or electronic transmission.  To the extent Defendants’ proof of service reflects service on Plaintiff by electronic transmission, such service is invalid.  Plaintiff is a self-represented litigant. Self-represented parties must affirmatively consent to electronic service by serving and filing a notice so stating. (Cal. Rules of Court, rule 2.251, subd. (c)(3)(B).) Absent such affirmative consent, self-represented parties must be served with documents by nonelectronic means. (Code Civ. Proc., §§ 1010.6, subd. (d)(4), 1011, subd. (b); Cal. Rules of Court, rule 2.253, subds. (b)(2), (3).)  The Court finds Plaintiff has not filed and served a notice affirmatively consenting to electronic service.  Consequently, the Court finds Defendants’ service of notice by electronic transmission to be additionally deficient per Code of Civil Procedure section 1011, subdivision (b).

Absent affirmation of the date of service of the motion and demurrer on Plaintiff, the Court is unable to determine whether Defendants have afforded Plaintiff adequate notice per Code of Civil Procedure section 1005.  (See Code Civ. Proc., § 1005, subd. (b).)  The Court therefore denies both the motion and demurrer as procedurally defective.

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