Judge Salvatore Sirna, Case 22PSCV03009 2023-05-18 Tentative Ruling

Judge: Salvatore Sirna, Case: 22PSCV03009, Date: 2023-05-18 Tentative Ruling

Case Number: 22PSCV03009 Hearing Date: May 18, 2023 Dept: G

Defendant Siwell Inc.’s Demurrer to First Amended Complaint

Respondent: Plaintiff Briana Quinn

TENTATIVE RULING

Defendant Siwell Inc.’s Demurrer to First Amended Complaint¿is CONTINUED a date to be determined at the hearing.

Defendant’s counsel is also ordered meet and confer with Plaintiff’s counsel regarding the Demurrer and file a supplemental declaration describing such meet and confer efforts at least nine (9) court days before the next scheduled hearing.

BACKGROUND

This is a wrongful foreclosure action. On July 23, 2020, Plaintiff Briana Quinn obtained a mortgage from AHL Funding on real property in Covina (Covina Property) in the amount of $414,631. On April 29, 2022, an assignment of deed of trust was recorded that allegedly assigned the deed of trust from AHL Funding to Defendant Siwell Inc. On the same day, a notice of default and election to sell under deed of trust was recorded. On July 29, a notice of trustee’s sale was recorded. The Covina Property was subsequently sold on December 22.

On December 20, 2022, Plaintiff filed a complaint against Defendant and Does 1-10, alleging the following causes of action: (1) violation of Civil Code section 2923.5; (2) violation of Civil Code section 2924, subdivision (a)(1); (3) violation of Civil Code section 2923.6, subdivision (c); (4) violation of Civil Code section 2923.7; (5) violation of Civil Code section 2924.9; (6) violation of Civil Code section 2924.10; (7) unfair business practices; and (8) cancellation of written instruments.

On February 21, 2023, Plaintiff filed a First Amended Complaint (FAC) against the same defendants alleging the same causes of action in addition to a ninth cause of action for wrongful foreclosure.

On March 22, 2023, Defendant filed the present demurrer. Prior to filing, Defendant’s counsel allegedly met and conferred and was unable to reach a resolution. (Vermillion Decl., ¶ 2.)

A hearing on the demurrer, case management conference, and OSC Re: Failure to File Proof of Service are set for May 18, 2023.

ANALYSIS

Defendant demurs to Plaintiff’s first cause of action (Civ. Code, § 2923.5), second cause of action (Civ. Code, § 2924, subd. (a)(1)), third cause of action (Civ. Code, § 2923.6, subd. (c)), fourth cause of action (Civ. Code, § 2923.7), fifth cause of action (Civ. Code, § 2924.9), sixth cause of action (Civ. Code, § 2924.10), seventh cause of action (unfair business practices), eighth cause of action (cancellation of written instruments), and ninth cause of action (wrongful foreclosure). For the following reasons, the court finds parties did not adequately meet and confer.

Legal Standard

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.)

Discussion

In this case, Defendant’s counsel filed a declaration stating counsel met and conferred by contacting Plaintiff’s counsel. (Vermillion Decl., ¶ 2.) However, a meet-and-confer declaration must state “[t]he 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.” (Code Civ. Proc., § 430.41, subd. (a)(3)(A).) Here, counsel’s declaration does not meet the requirements of Code of Civil Procedure section 430.41, subdivision (a) as it does not state how and when parties met and conferred. Thus, the court finds parties did not adequately meet and confer and finds a continuance of the hearing on Defendant’s demurrer is appropriate.

CONCLUSION

Based on the foregoing, Defendant’s demurrer to Plaintiff’s FAC is CONTINUED a date to be determined at the hearing.