Judge: Michael E. Whitaker, Case: 24SMCV00527, Date: 2024-06-12 Tentative Ruling

Case Number: 24SMCV00527    Hearing Date: June 12, 2024    Dept: 207

TENTATIVE RULING

BACKGROUND

This case arises from a dispute concerning unpaid legal fees for services rendered to and at the behest of now-deceased Mark Jarmus, as Trustee of the Leslie Jarmus Family Trust.  From January 25, 2017 through October 10, 2022, Plaintiff RMO LLP (“Plaintiff”) provided legal representation to Mark Jarmus as Successor Trustee of the Leslie Jarmus Family Trust in litigation involving Mark Jarmus’s administration of the trust, which is still currently pending as Los Angeles Superior Court Case No. BP173009 (“Leslie Jarmus Trust Matter”).  (Compl. ¶¶ 1, 10.)  That case also involves claims against Mark Jarmus in his individual capacity, stemming from allegations that he took funds from the Trust in bad faith.  (Compl. ¶ 13.)  Plaintiff has since withdrawn as counsel in that matter.  (Compl. ¶ 24.)

Plaintiff alleges substantial legal fees were incurred that remain outstanding.  (Compl. ¶ 1.)  On February 3, 2023, Mark Jarmus (“Jarmus”) died.  (Compl. ¶¶ 3, 26.)  On July 26, 2023, Plaintiff filed a creditor claim in the probate matter of Mark Jarmus’ estate.  On February 5, 2024, Plaintiff filed this action against Mark Jarmus’ estate following the failure to approve creditor’s claim.

Defendant Alex Borden, Personal Representative of the Estate of Jark Jarmus, deceased (“Defendant”) demurs to the complaint under Code of Civil Procedure section 430.10 on the following grounds:  (i) this Court lacks jurisdiction pursuant to subdivision (a); (ii) there is another action pending between the same parties on the same causes of action pursuant to subdivision (c); (iii) there is a defect or misjoinder of parties pursuant to subdivision (d); the complaint fails to state facts sufficient to constitute a cause of action pursuant to subdivision (e); and the complaint is uncertain pursuant to subdivision (f).

Plaintiff opposes the demurrer and Defendant replies.

MEET AND CONFER REQUIREMENT

            Code of Civil Procedure section 430.41, subdivision (a) requires that “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.” 

The statute further requires “As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.”  (Code Civ. Proc., § 430.41, subd. (a)(1).)  “The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.”  (Ibid.)

“The parties shall meet and confer at least five days before the date the responsive pleading is due.  (Code Civ. Proc., § 430.41, subd. (a)(2).)  “The demurring party shall file and serve with the demurrer a declaration stating either” the means by which the parties met and conferred, or that the party who filed the pleading subject to demurrer failed to respond to the meet and confer request.  (Id. at subd. (a)(3).) 

Here, the Declaration of Alex R. Borden provides:

2. On April 9, 2024, I filed a Declaration of Demurring Party in Support of Automatic Extension.

3. At the time the Declaration was filed, I was attempting to meet and confer with Plaintiff, RMO LLP, as to why their Complaint on Claim Deemed Rejected (“Complaint”) was subject to demurrer.

4. Our further efforts to meet and confer by email resulted in an impasse, and an agreement resolving my objections could not be reached.

(Borden Decl. ¶¶ 2-4.)  However, according to Plaintiff’s counsel, Phillip Szachowicz,

2. On April 8, 2024, I met and conferred telephonically with Defendant Alex Borden, as personal representative of the Estate of Mark Jarmus, concerning the potential demurrer Mr. Borden was contemplating filing in connection with RMO’s Complaint. During that call, Mr. Borden raised two main issues: (1) that he did not believe there were grounds to pursue the complaint because Mark Jarmus did not sign the engagement agreement with RMO in his individual capacity and (2) that he did not believe the Notice of Client’s Right to Fee Arbitration had been served on Mr. Jarmus. During that call, I indicated to Mr. Borden that the notice had gone out and that I would forward him a copy. He stated he would review it and then follow back up once he had further considered our discussions.

3. Following that teleconference, I emailed Mr. Borden a copy of the Notice of Client’s Right to Fee Arbitration that was previously served on Mr. Jarmus after RMO withdrew as his counsel. A true and accurate copy of the April 8, 2024 email is attached as Exhibit A.

4. On April 9, 2024, I received Mr. Borden’s declaration requesting an automatic extension of the deadline to file a demurrer based on the ongoing meet and confer efforts.

5. On May 10, 2024, I received Mr. Borden’s demurrer to RMO’s Complaint. No other meet and confer efforts occurred between April 8, 2024 and May 10, 2024.

(Szachowicz Decl. ¶¶ 2-5.)

            Specifically, Plaintiff’s counsel contends that the demurrer itself raises issues not raised in the parties’ meet and confer, and requests an opportunity to amend its complaint in light of the new arguments.  (Opposition at p. 7.) 

CONCLUSION AND ORDER

            Therefore, the Court finds that Defendant’s counsel did not adequately meet and confer on all grounds for the demurrer before filing, and that further meet and confer efforts may be fruitful. 

As such, the Court continues the hearing on Defendant’s demurrer to August 6, 2024 at 8:30 A.M. in Department 207 to enable the parties to properly meet and confer and amend the pleadings, if appropriate.  No further briefing will be accepted in connection with the currently pending demurrer, but the parties shall file declarations regarding their further meet and confer efforts on or before July 30, 2024. 

Defendant shall provide notice of the Court’s orders and file the notice with a proof of service forthwith. 

DATED:  June 12, 2024                                                         ___________________________

                                                                                    Michael E. Whitaker

                                                                                    Judge of the Superior Court