Judge: Salvatore Sirna, Case: 23PSCV03075, Date: 2024-12-02 Tentative Ruling

Case Number: 23PSCV03075    Hearing Date: December 2, 2024    Dept: G

Plaintiff Adam Dolce’s Demurrer to Defendant’s Answer to Second Amended Complaint

Respondent: NO OPPOSITION (as of 11/18/2024)

Plaintiff Adam Dolce’s Motion to Strike Portions of Defendant’s Answer to Second Amended Complaint

Respondent: NO OPPOSITION (as of 11/18/2024)

TENTATIVE RULING

Plaintiff Adam Dolce’s Demurrer to Defendant’s Answer to Second Amended Complaint and Motion to Strike Portions of Defendant’s Answer to Second Amended Complaint are CONTINUED to a date to be determined at the hearing in Department G (Pomona).

Plaintiff Adam Dolce’s counsel is also ordered to meet and confer with Defendant The Internet Auto Group Inc.’s counsel regarding the Demurrer and Motion to Strike 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 and Motion to Strike.

BACKGROUND

This is a contractual fraud action. In October 2023, Defendant The Internet Auto Group, Inc. (IAG) advertised a 2021 Polestar 2 Launch Edition for sale online at a price of $31,930. Plaintiff Adam Dolce saw the advertisement for the vehicle and visited IAG. At IAG, a representative told Dolce that the cost of the vehicle would be $35,600 after sales tax, official fees, and document processing charges. After agreeing to purchase the vehicle for that price in cash, Dolce alleges IAG then informed Dolce that the total price was over $41,000 based on two mandatory add-ons, including a theft-deterrent device priced at $1,995 and paint protection priced at $1,995. When Dolce objected to the add-ons, IAG offered to reduce the price to $37,000 and Dolce declined their offer.

On October 5, 2023, Dolce filed a complaint against Defendants Plug-In Auto and Does 1-10, alleging the following causes of action: (1) specific performance, (2) breach of contract, (3) intentional misrepresentation, (4) violation of the Consumers Legal Remedies Act (CLRA), (5) declaratory relief, and (6) civil conspiracy.

On November 20, 2023, Dolce filed a First Amended Complaint (FAC) against IAG and Does 1-10, alleging the following causes of action: (1) violation of the CLRA, (2) intentional misrepresentation, (3) concealment, (4) negligent misrepresentation, (5) breach of contract, and (6) violation of Unfair Competition Law. On April 16, 2024, the court sustained IAG’s demurrer to the FAC in part with leave to amend.

On May 6, 2024, Dolce filed a Second Amended Complaint (SAC) against the same defendants alleging the same causes of action.

On August 20, 2024, IAG filed an answer to the SAC.

On October 2, 2024, Dolce filed the present demurrer and motion to strike. A hearing on the present motions is set for December 2, 2024, along with a case management conference/status conference re: ADR on January 30, 2025.

ANALYSIS

Dolce demurs to IAG’s second affirmative defense of statute of limitations. 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, Dolce’s counsel attempted to meet and confer by sending emails to IAG’s counsel. (Cook Decl., ¶ 1-5.) But emails are not code-compliant means of meeting and conferring. Furthermore, Dolce’s counsel fails to point to any attempt to contact opposing counsel by telephone. Because counsel failed to make sufficient efforts to meet and confer with opposing counsel, a continuance of the hearing on the demurrer and motion to strike is appropriate.

CONCLUSION

Based on the foregoing, Dolce’s demurrer and motion to strike are CONTINUED to a date to be determined at the hearing in Department G (Pomona).

Dolce’s counsel is also ordered to meet and confer with IAG’s counsel regarding the demurrer and motion to strike 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 and motion to strike.