Judge: Michael E. Whitaker, Case: 24SMCV05310, Date: 2025-02-25 Tentative Ruling

Case Number: 24SMCV05310    Hearing Date: February 25, 2025    Dept: 207

TENTATIVE RULING

MOTION

This case arises from a dispute concerning construction debris at Plaintiff’s residence.  On October 30, 2024, Plaintiff Gwenda Perez (“Plaintiff”) brought suit against Defendants F. Roberts Construction; County of Los Angeles; Los Angeles County Department of Beaches and Harbors; Greystar California, Inc.; GK Management Co. Inc. (Doe 1); and Dolphin Marina (Doe 2) (“Defendants”) alleging twenty-one causes of action:

1.     Private Nuisance

2.     Public Nuisance

3.     Trespass to Land

4.     Strict Liability

5.     Premise Liability

6.     Breach of Implied Warranty of Habitability

7.     Breach of Implied Covenant of Quiet Use & Enjoyment

8.     Retaliation

9.     Violation of Los Angeles County Rent Stabilization and Tenant Protections Ordinance

10.  Constructive Eviction (Cal. Civ. Code, § 789.3)

11.  Constructive Eviction

12.  Fraud

13.  Intentional Infliction of Emotional Distress

14.  General Negligence

15.  Negligence per se

16.  Breach of Contract

17.  Breach of Implied Covenant of Good Faith and Fair Dealing

18.  Declaratory Relief

19.  Appointment of a Receiver

20.  Violation of Cal. Bus. & Prof. Code, §§ 17200 et seq.

21.  Violation of ADA

Defendants County of Los Angeles and Los Angeles County Department of Beaches and Harbor (together, “County”) demur to all causes of action except the fifteenth cause of action for negligence on the grounds that they fail to state facts sufficient to constitute a cause of action under Code of Civil Procedure section 430.10, subdivision (e) and are bared by Government Code section 815 and/or the Government claim presentment requirements of section 910 et seq.

County also moves to strike Plaintiff’s request for punitive damages and Paragraphs 254 and 321 on the grounds that they include allegations beyond the scope of Plaintiff’s Government Claims Act notice.  Plaintiff opposes both motions and County replies.

MEET AND CONFER REQUIREMENT

            The Code of Civil Procedure requires that “Before filing a [demurrer/motion to strike] pursuant to this chapter, the [demurring/moving] party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to [demurrer/motion to strike] for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the [demurrer/motion to strike].”  (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).) 

The statutes further require “As part of the meet and confer process, the [demurring/moving] party shall identify all of the specific causes of action that it believes are subject to [demurrer/being stricken] and identify with legal support the basis of the deficiencies.”  (Code Civ. Proc., § 430.41, subd. (a)(1); § 435.5, 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/the motion to strike must be filed].”  (Code Civ. Proc. § 430.41, subd. (a)(2); § 435.5, subd. (a)(2).)  “The [demurring/moving] party shall file and serve with the [demurrer/motion to strike] 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., subd. (a)(3).) 

Here, Plaintiff filed the original Complaint on October 30, 2024 and served the County on November 25, 2024, making County’s original deadline to respond to the Complaint December 26, 2024.  On December 9, the parties stipulated to a 15-day extension, extending the responsive pleading deadline to January 10, 2025. 

On January 6, 2025, County’s counsel sent Plaintiff’s counsel an email outlining the grounds for the demurrer and motion to strike.  (Bird Decl. ¶ 3.)  Plaintiff’s counsel responded on January 9 and County’s counsel asked if Plaintiff’s counsel was available to meet and confer the morning of January 10.  (Bird Decl. ¶ 4.)  However, as of about 7:49 p.m. on January 10 when the declarations and motion papers were filed, no such meet and confer had occurred. 

In opposition, Plaintiff’s counsel confirms that the demurrer and motion to strike were filed “without any substantive discussion.”  (Winters Decl. ¶ 2.)

Notwithstanding, “A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the [demurrer/motion to strike].”  (Code Civ. Proc., § 430.41, subd. (a)(4); § 435.5, subd. (a)(4).)

CONCLUSION AND ORDER

Therefore, the Court continues the hearing on the demurrer and motion to strike to May 7, 2025 at 8:30 A.M. in Department 207 to permit the parties an opportunity to meaningfully meet and confer by telephone, in person, or by video conference, in conformance with the statutory requirements, and, if appropriate, to stipulate to amend the pleadings without the need for judicial intervention.  All opposition and reply papers on the merits shall be filed and served under Code of Civil Procedure section 1005 in accordance with the hearing date of May 7, 2025. 

County shall provide notice of the Court’s ruling and file a proof of service regarding the same. 

DATED:  February 25, 2025                                                  ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court