Judge Peter A. Hernandez, Case 22PSCV01107 2022-11-22 Tentative Ruling

The hearing on Defendant Great New World Equity LLC’s Demurrer to Plaintiff’s First Amended Complaint is CONTINUED to February 6, 2023 at 9:30 a.m.

Plaintiff Zhou’s Investment & Management, Inc. dba The Noodle (“Zhou”) alleges as follows:

On September 13, 2011, Zhou and Defendant U.N.T. Atia Co II (“U.N.T.”) entered into a Shopping Center Lease Agreement (“Lease Agreement”) whereby Zhou leased from U.N.T. the premises known as 19755 E. Colima Road #C, Rowland Heights, CA 91748 (“subject property”). In or about 2012 and 2013, the parties agreed to have Zhou advance $70,000 to pay for repair and installation of common space walkway and an oil tank, and that U.N.T. would later reimburse Zhou, with interest. Defendant Great New World Equity LLC (“GNWE”) is U.N.T.’s successor-in-interest. In March 2021, Zhou noticed that the subject property’s roof was leaking. Zhou has asked that the roof be repaired, without success. On March 7, 2021, Zhou demanded payment of the advanced $70,000 plus interest. It was subsequently agreed, via a written memorialization dated March 8, 2021, that the monies owed were to offset Zhou’s rental obligations. Zhou has been paying rent in accordance with this compromise ever since. On September 23, 2022, Zhou received a Three-Day Notice to Pay Rent or Quit, which was made in retaliation for Zhou’s repeated requests that the roof be repaired.

On October 5, 2022, Zhou filed a First Amended Complaint, asserting causes of action against U.N.T., GNWE and Does 1-10 for:

On October 17, 2022, Case Nos. 22PSCV01107 and 22PSCV01124 were related; Case No. 22PSCV01107 was deemed the lead case.

This is an unlawful detainer action involving the premises located at 19755 E. Colima Road #C, Rowland Heights, CA 91748 (“subject property”). On September 29, 2022, Plaintiff GNWE filed a complaint, asserting a cause of action against Zhou for:

Again, on October 17, 2022, Case Nos. 22PSCV01107 and 22PSCV01124 were related; Case No. 22PSCV01107 was deemed the lead case.

GNWE demurs, per Code of Civil Procedure § 430.10, subdivision (e), to the first and second causes of action in Zhou’s FAC, on the basis that they both fail to state facts sufficient to constitute causes of action.

The hearing on the demurrer is CONTINUED to February 6, 2022 at 9:30 a.m. (Code Civ. Proc., §§ 128; 430.41[1].) Code of Civil Procedure § 430.41 requires a demurring party in certain civil actions, before filing the demurrer, to engage in a specified meet and confer process with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached as to the filing of an amended pleading that would resolve the objections to be raised in the demurrer.

GNWE’s demurrer is accompanied by a meet and declaration from attorney Yaw-Jiun (“Gene”) Wu (“Wu”). Wu attests that on October 24, 2022 he called Plaintiffs’ counsel Jeffrey C.P. Wang (“Wang”) and Michael York (“York”) to meet and confer, but neither were available so he left a message with their assistant. (Wu Decl., ¶ 2.) Wu further attests that he emailed Wang and York that day with the grounds for the demurrer and asked that they call him back, but that he had not received any response as of the October 28, 2002 demurrer filing date. (Id.)

York, in opposition, points out that Wu executed a “Notice and Acknowledgment of Receipt” on behalf of GNWE on October 20, 2022, such that GNWE’s deadline for filing a responsive pleading was November 21, 2022. (York Decl., ¶ 3, Exh. B.) York acknowledges that Wu sent an October 24, 2022 email regarding GNWE’s intent to demur to Plaintiff’s FAC, but complains that thus demurrer was “hastily filed” only 4 days later, 24 days before the responsive pleading was due. (Id., ¶ 4.)

Based on the above, the court determines that an insufficient meet and confer was conducted prior to the filing of the instant demurrer. The court will continue the hearing on the demurrer, to February 6, 2022 at 9:30 a.m.

The court instructs counsel for GNWE to file and serve a declaration in compliance with Code of Civil Procedure § 430.41 at least nine court days prior to the continued hearing date.

[1] Code of Civil Procedure § 430.41 provides, in relevant part, as follows: “(a) 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. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.

(1) 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. 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. (2) The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer 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. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.

(3) The demurring party shall file and serve with the demurrer a declaration stating either of the following:

(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.

(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith. . .” (Emphasis added).