Judge: Teresa A. Beaudet, Case: 20STCV39584, Date: 2024-03-18 Tentative Ruling

Case Number: 20STCV39584    Hearing Date: March 18, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiffs Craig L. Dixon; Kathleen Gay Dixon; Craig L. Dixon, Kathleen Gay Dixon and Andrew Dixon, Trustees of the Restated Dixon Family Trust U/D/O April 23, 2014; Azalea Gardens; and Pioneer SG, LLC (collectively, “Plaintiffs”) filed this action on October 13, 2020 against Defendants Frederick Kenneth Kramer, a/k/a Kevin Dosh, Darren Kikuchi (“Kikuchi”), Cynthia Barron (“Barron”), Joyce Cook (“Cook”), Betty Cannon (“Cannon”), Tony Wim Struyk, Lee Stein (“Stein”), and Oakcrest Manor SD, Inc.

On May 24, 2021, Plaintiffs filed the operative First Amended Complaint (“FAC”), alleging twenty causes of action.

On July 12, 2021, Frederick Kenneth Kramer filed a Cross-Complaint against Craig L. Dixon; Craig L. Dixon, Kathleen Gay Dixon and Andrew Dixon, Trustees of the Restated Dixon Family Trust U/D/O April 23, 2014; Azalea Gardens; and Pioneer SG, LLC. The Cross-Complaint alleges nine causes of action.

Frederick Kenneth Kramer (“Kramer”) now moves for judgment on the pleadings as to portions of Plaintiffs’ FAC. Barron and Cook join in the motion. Kikuchi, Cannon, and Stein also join in the motion. Kramer’s motion is unopposed.

Discussion

As an initial matter, the Court notes that Kramer’s counsel’s declaration filed in support of the motion provides, inter alia, “I attempted to engage in a meet and confer conversations with Plaintiff’s counsel, Mr. Chad Pehrson, by sending him an email on January 6, 2024. In this email I explained the grounds for the Judgment on the Pleadings as many of Dr. Dixon’s claims are time-barred. This email was not responded to, and there was no out of office reply. On the morning of January 10, 2024, my co-counsel, Ms. Anne Potiker, sent a follow-up email to Mr. Pehrson in which she alerted him to the desire to meet and confer. She informed him that Defendant would be filing the Judgment on the Pleadings motion later that day if we received no response.” (Monks Decl., ¶ 2.) Kramer’s counsel further states that “Mr. Pehrson responded to Ms. Swenson’s email. In turn, we engaged in a back-and-forth short email discussion. I understand Mr. Pehrson did not have a comment on the substance of the reasons of the Judgment on the Pleadings [sic] and reserved making comment until he had read it. In return, I indicated to him we would be filing the motion.” (Monks Decl., ¶ 3.)

The Court notes that Kramer’s counsel’s declaration does not demonstrate that the parties met and conferred in person, by telephone, or by video conference regarding Kramer’s motion for judgment on the pleadings, or that Kramer’s counsel attempted to do so.

 Pursuant to Code of Civil Procedure section 439, subdivision (a), “[b]efore filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion for judgment on the pleadings against the amended pleading.” (Emphasis added.) Such meeting and conferring must be done in good faith with an effort to try to resolve the issues subject to the motion for judgment on the pleadings. 

In addition, on March 14, 2024, counsel for Craig L. Dixon and Kathleen Gay Dixon filed a declaration stating, inter alia, that “[o]n June 14, 2022, Counsel for the Dixon Parties specifically communicated in writing to counsel for Mr. Kramer/Dosch, stating as follows: ‘Pursuant to Code of Civil Procedure section 1010.6(a) . . . We request all documents to be served on us electronically, as the sole method of service; you should email documents to: jadamson@kba.law, cpehrson@kba.law, calendar@kba.law.” (Pehrson Decl., ¶ 2.)[1] Mr. Pehrson states that “[o]n January 10, 2024, Counsel for Mr. Kramer Dosch emailed, only to cpehrson@kba.law and jadamson@kba.law, and not calendar@kba.law, as follows: ‘Please see the attached Notice of Motion and Motion for Judgement on the Pleadings and accompanying documents.’” (Pehrson Decl., ¶ 3, Ex. A, emphasis omitted.) Mr. Pehrson asserts that “[a]s a practical matter, due to the non-service, neither the motion nor any supposed hearing date was processed as being served or calendared by Counsel for the Dixon Parties.” (Pehrson Decl., ¶ 4.)

Mr. Pehrson also asserts that “[t]he Proof of Service attached to the January 10, 2024 email purports that the Motion was also sent via mail. I believe this to be an inaccurate statement. Neither I nor any other counsel for the Dixon Parties ever received any copy of the Motion and Notice via mail.” (Pehrson Decl., ¶ 5.)

In light of the foregoing, the hearing on Kramer’s motion for judgment on the pleadings is continued to _______________, 2024 at 2 p.m. in Dept. 50. 

Kramer is¿ordered to meet¿and confer¿with Plaintiffs within 10 days of the date of this order.¿If the parties are unable to resolve the pleading issues¿or if the parties are otherwise unable to meet and confer in good faith, Kramer is to¿thereafter¿file and serve¿a declaration setting forth the efforts to meet and confer in compliance with Code of Civil Procedure section 439, subdivision (a)(3) within 15 days of this order.¿

In addition, the parties may file and serve opposition and reply briefs per Code of Civil Procedure section 1005, subdivision (b), based on the continued hearing date. Kramer may file a new reply brief that will supersede the previously filed reply papers.

Kramer is ordered to give notice of this order.

DATED:  March 18, 2024                              ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court