Judge Salvatore Sirna, Case 21PSCV00702 2022-12-06 Tentative Ruling

Judge: Salvatore Sirna, Case: 21PSCV00702, Date: 2022-12-06 Tentative Ruling

Case Number: 21PSCV00702 Hearing Date: December 6, 2022 Dept: A

Plaintiff Rachel Neu’s Demurrer to Defendant’s First Amended Cross-Complaint

Respondent: Defendant and Cross-Complainant Peter Elias

TENTATIVE RULING

Plaintiff Rachel Neu’s Demurrer to Defendant’s First Amended Cross-Complaint is CONTINUED TO January 11, 2023, at 8:30 a.m. in Department G at Pomona Courthouse South. Plaintiff is also ordered meet and confer with Defendant’s counsel regarding the Demurrer. The parties are ordered to file supplemental declarations describing such meet and confer efforts on or before January 6, 2023.

BACKGROUND

This is a dispute over real property involving a family trust. Shelia Robles (Robles), also known as Cecilia A. Robledo, and Rachel Neu (Neu) are co-trustees of the Luis M. Elias Trust. Luis Elias transferred real property to the trust, while retaining the right to possess, profit from, and manage the trust property until death. Luis Elias leased the trust property to Defendant Peter Elias who collected rent from the property’s tenants. After Luis Elias died, Defendant continued to collect rent on the trust property.

On August 30, 2021, Robles, as trustee of the Luis M. Elias Trust, filed a complaint against Jenny Milner, Defendant, Mario Garcia, and Does 1-20, alleging the following causes of action: (1) conversion, (2) breach of fiduciary duty, (3) money had and received, and (4) rent due. On September 16, Robles filed a First Amended Complaint. On March 30, 2022, Robles and Neu filed a Second Amended Complaint against the same defendants alleging the same causes of action.

On July 27, 2022, Defendant filed a cross-complaint against Robles and Neu, alleging causes of action for: (1) breach of contract, (2) conversion, (3) breach of fiduciary duty, (4) money had and received and action for rent, (5) intentional infliction of emotional distress, (6) defamation, (7) malicious prosecution, and (8) declaratory relief. On October 12, the court sustained Robles and Neu’s demurrer to Defendant’s cross-complaint with 10 days leave to amend.

On October 24, 2022, Defendant filed a First Amended Cross-Complaint (FACC) against the same defendants, alleging causes of action for: (1) breach of contract, (2) conversion, (3) breach of fiduciary duty, (4) money had and received and action for rent, (5) intentional infliction of emotional distress, (6) defamation, and (7) declaratory relief.

On October 27, 2022, Neu filed the present demurrer. Neu’s counsel did not meet and confer with Defendant’s counsel. A hearing on the demurrer and case management conference are set for December 6.

LEGAL STANDARD

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747.)

DISCUSSION

Neu demurs to Defendant’s third cause of action for breach of fiduciary duty. Neu’s counsel requests no meet and confer obligations be required on the grounds that Defendant’s FACC was filed late. (McMeekin Decl., ¶ 2.) The court disagrees.

Pursuant to Code of Civil Procedure section 430.41, subdivision (a), prior to filing a demurrer, “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.” This section further provides that “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).)

While Code of Civil Procedure section 430.41, subdivision (a)(4) makes clear failing to meet and confer is not grounds to overrule a demurrer, courts “are not required to ignore defects in the meet and confer process” and if the court determines “no meet and confer has taken place, or concludes further conferences between counsel would likely be productive, it retains discretion to order counsel to meaningfully discuss the pleadings with an eye toward reducing the number of issues or eliminating the need for a demurrer, and to continue the hearing date to facilitate that effort.” (Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 355 & fn. 3.)

Here, the court finds meet and confer obligations must be satisfied. Accordingly, the court finds a continuance of the hearing on Neu’s demurrer is appropriate.

CONCLUSION

Based on the foregoing, Neu’s demurrer to Defendant’s First Amended Cross-Complaint is CONTINUED TO January 11, 2023, at 8:30 a.m. in Department G at Pomona Courthouse South. Neu’s counsel is also ordered meet and confer with Defendant’s counsel regarding the Demurrer. The parties are ordered to file supplemental declarations describing such meet and confer efforts on or before January 6, 2023.