Judge: Peter A. Hernandez, Case: 23PSCV00839, Date: 2023-08-15 Tentative Ruling

Case Number: 23PSCV00839    Hearing Date: August 15, 2023    Dept: K

The hearing on Defendant La Puente Company LLC’s Demurrer to Plaintiff’s First Amended Complaint is CONTINUED to November 15, 2023 at 9:30 a.m. [see below].

Background[1]  

Plaintiff Gabriela Cabrera (“Plaintiff”) alleges as follows:

Plaintiff is disabled and uses a wheelchair for mobility. On January 28, 2022, Plaintiff went to K&B Liquor located at 443 S. Azusa Ave., La Puente, California (“Business”) but encountered ADA non-compliant conditions, including the lack of an accessible route from the public right-of-way and pathways leading to the entrance of the Business which contain cross-slopes measuring in excess of the maximum grade allowed. The Business is owned by Defendant La Puente Company LLC (“Defendant”).

On June 2, 2023, Plaintiff filed a First Amended Complaint (“FAC”), asserting a cause of action against Defendant and Does 1-10 for:

1.                  Violation of The Unruh Civil Rights Act

A Case Management Conference is set for August 15, 2023.

Discussion

Defendant demurs, per Code of Civil Procedure § 430.10, subdivision (e), to the first and only cause of action in Plaintiff’s FAC, on the basis that it fails to state facts sufficient to constitute a cause of action.[2]

The hearing on the demurrer is continued to November 15, 2023 at 9:30 a.m.  (Code Civ. Proc., §§ 128; 430.41[3].) 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.

Defendant’s counsel’s Code of Civil Procedure § 430.41 meet and confer declaration is deficient, in that he discusses meet and confer efforts which transpired prior to Plaintiff’s June 2, 2023 filing of the FAC. Code of Civil Procedure § 430.41 expressly states that “[i]f 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.” (Emphasis added).

Counsel for Defendant must file a declaration in compliance with Code of Civil Procedure § 430.41 at least nine court days prior to the continued hearing date. 

Defendant is to provide notice.


[1]              The demurrer was filed (and served via email) on July 6, 2023 and originally set for hearing on August 1, 2023. On August 1, 2023, the court rescheduled the hearing to August 15, 2023.

[2]              Defendant’s notice of demurrer fails to identify the basis for same and instead generically requests “dismissal of the action;” nevertheless, a reading of the memorandum of points and authorities reflects that the demurer is based on Code of Civil Procedure § 430.10, subdivision (e).

[3]              This provision reads, 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…”