Judge Salvatore Sirna, Case 21PSCV00721 2023-03-30 Tentative Ruling

Judge: Salvatore Sirna, Case: 21PSCV00721, Date: 2023-03-30 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 21PSCV00721 Hearing Date: March 30, 2023 Dept: G

Cross-Defendants Carlota G. Cruz and Dora Cruz’s Demurrer to the First Amended Cross-Complaint

Respondent: Cross-Complainants Esteban Cruz and Ruth Cruz

TENTATIVE RULING

Cross-Defendants Carlota G. Cruz and Dora Cruz’s Demurrer to the First Amended Cross-Complaint is CONTINUED TO April 21, 2023, 8:30 a.m., Dept. G (Pomona).

Cross-Defendants’ counsel is also ordered meet and confer with Cross-Complainants’ counsel regarding the demurrer and file a supplemental declaration describing such meet and confer efforts at least (9) court days before the next scheduled hearing.

BACKGROUND

This is an action arising from a dispute over a family trust. On September 3, 1998, Carlota G. Cruz (Carlota Cruz) and Carlota Cruz’s husband, Antonio V. Cruz (Antonio Cruz), formed The Antonio V. Cruz and Carlota G. Revocable Trust (Cruz Trust) and are trustees of the Cruz Trust. On December 13, 2012, Carlota and Antonio Cruz amended the Cruz Trust. All of Carlota and Antonio Cruz’s assets and real property were allegedly placed under the Cruz Trust. Due to their advanced age and medical conditions, Carlota and Antonio Cruz have become more dependent on their family members and currently live in Pomona with their daughter, Dora Cruz. Carlota and Antonio Cruz also have a son named Esteban Cruz who is married to Ruth Cruz. Through Esteban and Ruth Cruz, Carlota and Antonio Cruz also have a granddaughter named Wendy Cruz.

Esteban and Ruth Cruz allegedly reside in residential property owned by Carlota and Antonio Cruz and have allegedly failed to (1) pay for property insurance on the residence and (2) pay property taxes. In March 2021, Carlota Cruz learned Antonio Cruz had made changes to Antonio Cruz’s health plan, allegedly at the behest of Esteban and Ruth Cruz. Carlota Cruz also learned Antonio Cruz had closed bank accounts and changed his mailing address to Esteban and Ruth Cruz’s address. Previously in February 2021, Carlota and Antonio Cruz had agreed that Esteban Cruz would assist in collecting rent from rental homes belonging to the Cruz Trust. However, Esteban, Ruth, and Wendy Cruz allegedly began managing the properties and intimidating tenants to force tenants to move out or pay rent.

On September 1, 2021, Carlota Cruz, as an individual and trustee of the Cruz Trust, filed a complaint against Esteban Cruz, Ruth Cruz, Wendy Cruz (collectively, Defendants), and Does 1-20, alleging the following causes of action: (1) elder abuse, (2) conversion, (3) accounting, (4) restitution, and (5) declaratory relief.

On July 21, 2022, Esteban and Ruth Cruz (collectively, Cross-Complainants) filed a cross-complaint against Carlota and Dora Cruz (collectively, Cross-Defendants) as trustees of the Cruz Trust, alleging the following causes of action: (1) defamation, (2) elder abuse, and (3) intentional interference with right of inheritance.

On August 29, 2022, Cross-Defendants filed a First Amended Complaint (FAC) against the same Defendants alleging the same causes of action.

On September 13, 2022, Cross-Complainants filed a First Amended Cross-Complaint (FACC) against the same Cross-Defendants and Roes 1-10, alleging the same causes of action.

On January 30, 2023, Cross-Defendants filed the present demurrer. Prior to filing on November 28, 2022, and on December 14, counsel for Cross-Defendants and Cross-Complainants attempted to meet and confer by exchanging letters. (Ruiz Decl., ¶ 4.)

A hearing on the demurrer is set for March 30, 2023, along with a case management conference. A post-mediation status conference/further trial setting conference is also set for June 28.

ANALYSIS

Cross-Defendants demur to the entire FACC on the grounds of subject-matter jurisdiction and to each of the three causes of action for failing to state sufficient facts to state a claim. For the following reasons, the court finds parties did not adequately meet and confer.

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

Prior to filing a demurrer, the moving party is required to meet and confer telephonically or in-person with the opposing party. (Code Civ. Proc., § 430.41, subd. (a).) 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.)

In this case, Cross-Defendants’ counsel states counsel emailed a meet and confer letter to Cross-Complainants’ counsel on November 28, 2022 that provided the grounds for Cross-Defendants’ demurrer and requested a teleconference to meet and confer. (Ruiz Decl., ¶ 4, Ex. B.) On December 14, Cross-Complainants’ counsel provided a written response in lieu of a telephonic meet and confer. (Ruiz Decl., ¶ 4, Ex. C.) However, the letter also left the possibility of a telephonic meet and confer open “if you still think it is necessary” and provided counsel’s availability. (Ruiz Decl., Ex. C.) The declaration from Cross-Defendants’ counsel is silent on what happened next beyond a vague “nothing was resolved and Cross-Defendants were forced to file this Demurrer.” (Ruiz Decl., ¶ 4.)

As a general matter, the court notes a single letter requesting a teleconference is likely an insufficient attempt to meet and confer in compliance with Code of Civil Procedure section 430.41, especially where, as here, Cross-Defendants’ counsel attempts to shift the burden of meet and conferring as the moving party onto the opposing party by making an open ended request to talk. While Cross-Defendants’ counsel cannot be faulted if Cross-Complainants’ counsel refused to meet, counsel’s letter here explicitly offered to discuss the matter further telephonically. Thus, absent a showing by Cross-Defendants’ counsel that counsel took advantage of this opportunity, the court finds the meet and confer effort here insufficient. Accordingly, the court finds a continuance of the hearing on Cross-Defendants’ demurrer is appropriate.

CONCLUSION

Based on the foregoing, Cross-Defendants’ demurrer to Cross-Complainants’ FACC is CONTINUED TO April 21, 2023, 8:30 a.m., Dept. G (Pomona).