Judge: Salvatore Sirna, Case: 22STCV33065, Date: 2023-03-14 Tentative Ruling

Case Number: 22STCV33065    Hearing Date: March 14, 2023    Dept: G

Defendant John D. Rimpau’s Demurrer to Plaintiff’s Complaint 

Respondent: Plaintiff Helen Long

TENTATIVE RULING

Defendant John D. Rimpau’s Demurrer to Plaintiff’s Complaint is CONTINUED TO March 30, 2023, 8:30 a.m., Department 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 nine (9) court days before the next scheduled hearing.

BACKGROUND

This is a premises liability action. On September 2, 2021, Plaintiff Helen Long visited Roady’s Family Restaurant (Roady’s) in San Dimas. After dining in, Plaintiff was attempting to leave when Plaintiff allegedly tripped on the doorway threshold of the restaurant’s rear entrance and fell onto the pavement. As a result of Plaintiff’s fall, Plaintiff suffered a fractured ankle, abrasions, lacerations, torn right shoulder and bicep tendons, and a bruised knee. Plaintiff subsequently had to receive medical treatment at the Pomona Valley Hospital Medical Center. Plaintiff alleges the doorway was dangerous and unsafe.

On October 7, 2022, Plaintiff filed a complaint against Roady’s, John D. Rimpau (Defendant), and Does 1-10 inclusive, alleging the following causes of action: (1) premises liability, (2) negligence, (3) violations of the Americans with Disabilities Act (ADA), and (4) violations of the Unruh Civil Rights Act (UCRA).

On December 13, 2022, Roady’s filed a cross-complaint against Roes 1-50 for indemnity, contribution, and declaratory relief.

On December 23, 2022, Defendant filed the present demurrer. Prior to filing on December 21, Defendant’s counsel emailed a “meet and confer letter” to Plaintiff’s counsel. (Muller Decl., ¶ 3.)

A hearing on the demurrer and case management conference is set for March 14, 2023.

ANALYSIS

Defendant demurs to Plaintiff’s third cause of action for violation of the ADA and fourth cause of action for violation of UCRA. 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

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 21, 2022, that purported to be a meet and confer, provided Defendant’s grounds for demurrer, and invited Plaintiff to talk on the telephone. (Muller Decl., ¶ 3, Ex. 1.) Defendant’s counsel did not detail any further attempt to meet and confer by following up or attempting to contact Plaintiff’s counsel over telephone. Accordingly, the court finds this attempt to meet and confer insufficient.

Therefore, the court finds appropriate a continuance of the hearing on Defendant’s demurrer to March 30, 2023. 

CONCLUSION

Based on the foregoing, Defendant’s demurrer to Plaintiff’s complaint is CONTINUED TO March 30, 2023, 8:30 a.m., Department 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 nine (9) court days before the next scheduled hearing.¿