Judge Salvatore Sirna, Case 22PSCV02105 2023-02-02 Tentative Ruling

Judge: Salvatore Sirna, Case: 22PSCV02105, Date: 2023-02-02 Tentative Ruling

Case Number: 22PSCV02105 Hearing Date: February 2, 2023 Dept: G

Defendant Mary Marshall’s Demurrer to Plaintiff’s Complaint

Respondent: Plaintiff Jace King

TENTATIVE RULING

Defendant Mary Marshall’s Demurrer to Plaintiff’s Complaint is CONTINUED TO March 8, 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 describing such meet and confer efforts at least ten (10) court days before the next scheduled hearing, or on or before February 27, 2023.

BACKGROUND

This is an action for trespass arising from a dispute over a walkway. On February 12, 2008, Plaintiff Jace King, formerly known as Ali Tavana, purchased a residential property in Pomona (hereafter, the Pomona property). There is a concrete walkway on the Pomona property adjacent to the public street. Plaintiff alleges the walkway is not a public sidewalk and part of Plaintiff’s private property. In September 2019, Plaintiff erected a fence around the walkway to prevent members of the public from utilizing it. Subsequently, employees or agents of the City of Pomona removed the fence from Plaintiff’s property. In mid-2021, another employee or agent of the City of Pomona allegedly entered Plaintiff’s property. Mary Marshall (Defendant), who resides nearby the Pomona property, also regularly and intentionally utilized the walkway on the Pomona property.

On November 30, 2022, Plaintiff filed a complaint for trespass against Defendant Mary Marshall, Defendant City of Pomona, and Does 1-100. On December 28, Plaintiff dismissed City of Pomona from this action.

On December 30, 2022, Defendant filed the present demurrer.

A hearing on the demurrer and a case management conference are set for February 2, 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 for trespass, arguing it fails to allege sufficient facts. 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.)

In this case, Defendant did not provide a declaration stating such meet and confer efforts occurred. Accordingly, the court finds a continuance of the hearing on Defendant’s demurrer is appropriate to give Defendant additional time to meet and confer with Plaintiff’s counsel in-person or over the telephone.

CONCLUSION

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

Defendant is also ordered to meet and confer with Plaintiff’s counsel in-person or over the telephone regarding the demurrer and to file a declaration describing the meet and confer efforts within (10) court days, or on or before February 27, 2023. Such a declaration shall be signed, dated, and include the language required in Code of Civil Procedure section 2015.5, subdivisions (a) or (b).¿