Judge: Serena R. Murillo, Case: 21STCV40343, Date: 2023-03-10 Tentative Ruling

Case Number: 21STCV40343    Hearing Date: March 10, 2023    Dept: 29

TENTATIVE 

The hearing on the demurrer is CONTINUED. Defendant Daniel Martinez is ordered to serve the demurrer on Plaintiff, and file a proof of service, showing Plaintiff has been served with the demurrer. Defendant is additionally ordered to meet and confer with Plaintiff and file a meet and confer declaration.

Legal Standard 

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) 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. (Code Civ. Proc., §§ 430.30, 430.70.) 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, 147 Cal.App.4th at 747.) 

Legal Standard 

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) 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. (Code Civ. Proc., §§ 430.30, 430.70.) 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, 147 Cal.App.4th at 747.) 

Discussion

The demurrer must be continued for two reasons.

First, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.  (Code Civ. Proc., § 1005, subd. (b).) 

Defendant failed to serve his moving papers on Plaintiff.  Defendant, therefore, failed to comply with California Code of Civil Procedure section 1005, subdivision (b).  The hearing must be continued to give Plaintiff adequate notice of and time to respond to Defendant’s demurrer. 

Second, Code of Civil Procedure section 430.41(a) states: before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who filed the complaint for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code of Civ. Proc., § 430.41(a).)  Further, 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 of Civ. Proc., § 430.41(a)(1).)  

The Court notes Defendant has not filed a meet and confer declaration. Defendant is ordered to meet and confer with Plaintiff before the next hearing on this demurrer.

Conclusion

The hearing on the demurrer is CONTINUED. Defendant is ordered to serve the demurrer on Plaintiff, and file a proof of service, showing Plaintiff has been served with the demurrer. Defendant is additionally ordered to meet and confer with Plaintiff and file a meet and confer declaration.

Moving party is ordered to give notice