Judge Salvatore Sirna, Case 21PSCV01065 2023-01-30 Tentative Ruling

Judge: Salvatore Sirna, Case: 21PSCV01065, Date: 2023-01-30 Tentative Ruling

Case Number: 21PSCV01065 Hearing Date: January 30, 2023 Dept: G

Defendant Citibank’s Demurrer to Plaintiff’s Complaint

Respondent: NO OPPOSITION

TENTATIVE RULING

Defendant Citibank’s Demurrer to Plaintiff’s Complaint is CONTINUED TO March 6, 2023, at 8:30 a.m., Dept. G (Pomona).

Defendant is ordered to meet and confer with Plaintiff’s counsel regarding the Demurrer and to file a supplemental declaration on or before February 21, 2023, describing such meet and confer efforts.

BACKGROUND

This is an action for identify theft. Plaintiff Carolina J. Evangelista is a 69-year-old resident of Diamond Bar. Plaintiff was contacted by an individual named Barry William (William) over the telephone who claimed to work on “generating federal grants.” William requested $15,000 from Plaintiff and asked that Plaintiff deposit the money in the bank account of Lily Aquino Aman (Aman) in Stockton. Plaintiff then sent the money to Aman at a Bank of the West location in Rowland Heights. Subsequently, Plaintiff sent a written notice to Defendant Citibank, stating Plaintiff was a victim of identity theft and providing a copy of a police report by the Los Angeles County Sheriff’s Department.

On December 21, 2021, Plaintiff filed a complaint against Defendant, Bank of the West, Aman, William, and Does 1-5, alleging violations of Civil Code sections 1798.2 through 1798.97.

On December 22, 2022, Defendant filed the present demurrer. Prior to filing on December 14, Defendant’s counsel contacted Plaintiff’s counsel via email, purporting to meet and confer. (Chute Decl., ¶ 3, Ex. A.) On December 19, Defendant’s counsel sent a follow up email asking whether Plaintiff’s counsel wanted further discussion.

A hearing on the demurrer, case management conference, OSC Re: Failure to File Proof of Service as to Defendants Aman and William, and an OSC Re: Default Judgment as to Defendant are all set for January 30, 2023.

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.)¿

ANALYSIS

Defendant demurs to Plaintiff’s Complaint, arguing (1) the Complaint fails to state sufficient facts to constitute a cause of action and (2) the Complaint is vague and uncertain.

For the following reasons, the court finds parties did not adequately meet and confer.

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, Defendant’s counsel sent an email to Plaintiff’s counsel on December 14, 2022, that purported to be a meet and confer, provided Defendant’s grounds for demurrer, and invited Plaintiff to talk on the telephone. (Chute Decl., ¶ 3, Ex. A.) On December 19, Defendant’s counsel sent a second email but did not provide a copy that sought “to ascertain whether [Plaintiff’s counsel] wanted to further discuss [Defendant’s] position.” (Chute Decl., ¶ 4.) Accordingly, Defendant’s counsel concluded that an agreement was not reached. (Chute Decl., ¶ 5.)

However, Defendant’s counsel fails to set forth if Plaintiff’s counsel complied, or if counsel ever met and conferred in-person or telephonically. The email from Defendant’s counsel appears to suggest that telephone discussions were optional, stating “I am available most of the early part of next week if you want to telephone so we may further discuss.” (Chute Decl., Ex. A.)

The court finds these two attempts to meet and confer insufficient to comply with the code requirements. Accordingly, the court finds a continuance of the hearing on Defendant’s demurrer is appropriate so that the parties may engage in a meaningful meet and confer.

CONCLUSION

Based on the foregoing, Defendant Citibank’s Demurrer to Plaintiff’s Complaint is CONTINUED TO March 6, 2023, at 8:30 a.m., Dept. G (Pomona).