Judge Salvatore Sirna, Case Number: 23PSCV01816, Date: 2024-12-09 Tentative Ruling

Judge: Salvatore Sirna, Case: 23PSCV01816, Date: 2024-12-09 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 a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 23PSCV01816 Hearing Date: December 9, 2024 Dept: G

Defendant Novolex Holdings, LLC’s Demurrer to Plaintiff’s First Amended Complaint

Respondent: Plaintiff Andes Harvest, Inc.

TENTATIVE RULING

Defendant Novolex Holdings, LLC’s Demurrer to Plaintiff’s First Amended Complaint is CONTINUED to a date to be determined at the hearing in Department G (Pomona).

Defendant Novolex Holdings, LLC’s Counsel is also ordered to meet and confer with Plaintiff Andes Harvest, Inc.’s Counsel regarding the Demurrer and to file a supplemental declaration describing such meet and confer efforts, including whether the attempts were made by telephone, video conference, or in person, at least nine (9) court days before the next scheduled hearing on the Demurrer.

BACKGROUND

This is a breach of contract action arising from a series of sublease agreements. Defendants Cups (DE) LP (Cups) and Wadd-II (TN) LP (Wadd) are alleged to be the owners of a commercial property in the City of Industry. Since 2001, Defendant Novolex Holdings, LLC (Novolex) allegedly rented the City of Industry property from Cups and Wadd and had been subleasing the property to Defendant Oceanus Decor & Flooring, Inc. (Oceanus) since 2022. In May 2023, Plaintiff Andes Harvest, Inc. (Andes) agreed to sublease the City of Industry property from Oceanus. After Andes made a payment of $182,420.08 which included the first month’s rent and a security deposit, Andes discovered the electrical system for the City of Industry property had been removed. When Andes demanded return of first months’ rent and security deposit in June 2023, Oceanus only offered to return the payment in installments, Novolex denied liability, and Cups and Wadd both ignored Andes’s demand.

On June 20, 2023, Andes filed a complaint against Cups, Wadd, Novolex, Oceanus, Zhigang Cui, CBRE, Inc. (CBRE), and Does 1-25, alleging the following causes of action: (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) concealment, (4) conversion, (5) restitution, and (6) breach of the duty of disclosure.

On January 16, 2024, Oceanus and Cui filed a cross-complaint against Andes and Does 1-10, alleging a single cause of action for breach of contract.

On October 10, 2024, Andes filed a First Amended Complaint (FAC) against the same defendants alleging the same causes of action.

On November 13, 2024, Novolex filed the present demurrer. A hearing on the present demurrer is set for December 9, 2024, along with a post-mediation status conference/trial setting conference on December 11, 2024.

ANALYSIS

Novolex demurs to Andes’s first cause of action (breach of contract), second cause of action (breach of implied covenant of good faith and fair dealing), third cause of action (concealment), fourth cause of action (conversion), and fifth cause of action (restitution). 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

Here, counsel for Novolex provided a declaration stating counsel met and conferred with Andes’s counsel on November 8, 2024. The declaration fails to specify, however, if the meet and confer efforts occurred in-person, by telephone, or by videoconference as required by the code. (Prince Decl., ¶ 3.) Thus, the court has no basis upon which to assess whether the parties met and conferred in a code-compliant manner. Therefore, a continuance of the hearing on the demurrer is appropriate so that counsel for Novolex may file a supplemental, code-compliant declaration.

CONCLUSION

Based on the foregoing, Novolex’s demurrer is CONTINUED to a date to be determined at the hearing in Department G (Pomona).

Novolex’s counsel is also ordered to meet and confer with Andes’s counsel regarding the demurrer and to file a supplemental declaration describing such meet and confer efforts, including whether the attempts were made by telephone, video conference, or in person, at least nine (9) court days before the next scheduled hearing on the demurrer.