Judge: Teresa A. Beaudet, Case: 21STCV27807, Date: 2022-07-29 Tentative Ruling

Case Number: 21STCV27807    Hearing Date: July 29, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On July 28, 2021, Plaintiffs Xian Chen Ge, Dong Ge, Yu Qi Ge, and Su Me Zheng (collectively, “Plaintiffs”) initiated the instant action against Defendants Joe Chikin (“Chikin”), Angela Szeto (“Szeto”), Parkland Townhomes Homeowners Association, Inc., and Inveserve Corporation (“Inveserve”). Plaintiffs filed a First Amended Complaint (“FAC”) on February 3, 2022, asserting causes of action for (1) violation of Civil Code § 1941, et seq. and Civil Code § 1942, et seq., (2) breach of warranty of habitability, (3) breach of covenant of quiet enjoyment, (4) nuisance, (5) negligent failure to provide and/or maintain habitable premises, (6) intentional infliction of emotional distress, (7) negligent infliction of emotional distress, (8) specific performance, (9) violation of Business & Professions Code § 17200 et seq.,  and (10) injunctive relief.

On June 10, 2022, the Court issued an Order sustaining Chikin and Szeto’s demurrer to the eighth cause of action of the FAC, with leave to amend, and overruling the demurrer to the seventh cause of action. The Court denied Chikin and Szeto’s motion to strike portions from the FAC. The June 10, 2022 Order provides in part that, “[t]he Court orders Plaintiffs to file and serve an amended complaint, if any, within 20 days of the date of this order. If no amended complaint is filed within 20 days, the Court orders [Chikin and Szeto] to file an answer within 30 days of the date of this order.”

On July 19, 2022, Plaintiffs filed a Second Amended Complaint (“SAC”).

Inveserve now demurs to each of the causes of action in the FAC. Inveserve also moves to strike portions of the FAC. No opposition to the demurrer or motion to strike was filed.

Discussion

As an initial matter, the Court notes that Inveserve’s counsel’s declarations filed in support of the demurrer and motion to strike indicate that he “attempted to meet and confer with plaintiffs’ counsel on May 4, 2022 informing plaintiff that we intended to demurrer to the deficiencies in the Complaint as the First Amended Complaint was not drawn in conformity with the law and that we would stipulate to filing an amended complaint, which removed the improper pleading.” (Partida Decls., ¶ 4.) Inveserve’s counsel’s declarations attach a May 4, 2022 letter from Inveserve’s counsel to Plaintiffs’ counsel indicating, “[p]lease allow this correspondence to serve as my effort to meet and confer regarding demurrer and motion to strike the First Amended Complaint.” (Partida Decls., ¶ 4, Exs. B.)

The Court notes that the Inveserve’s counsel’s declarations do not demonstrate that the parties met and conferred by telephone or in person, or that Inveserve’s counsel attempted to do so. Pursuant to Code of Civil Procedure section 430.41, subdivision (a), “[b]efore filing a demurrer pursuant to this chapter, 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. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.” (Emphasis added.) In addition, “[b]efore filing a motion to strike…the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a), emphasis added.)

Separately, Inveserve notes that Plaintiffs filed the SAC on July 19, 2022, outside of the time frame permitted by the Court’s June 10, 2022 Order on Chikin and Szeto’s demurrer and motion to strike. Plaintiffs were required to file and serve an amended complaint, if any, within 20 days of the June 10, 2022 Order. “A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.” (Code Civ. Proc., § 472, subd. (a).) As noted by In

veserve, Plaintiffs already amended the original Complaint once without leave of the court when they filed the FAC.

In light of the foregoing, the hearing on Inveserve’s demurrer and motion to strike is continued to _______________, 2022 at 2 p.m. in Dept. 50. 

Inveserve is¿ordered to meet¿and confer¿with Plaintiff¿within 10 days of the date of this order concerning its demurrer and motion to strike. The Court also encourages the parties to meet and confer concerning the two tracks created by Plaintiffs’ filing of the SAC. If the parties are unable to resolve the pleading issues so there is one operative pleading¿or if the parties are otherwise unable to meet and confer in good faith, Inveserve is to¿thereafter¿file and serve¿a declaration setting forth the efforts to meet and confer in compliance with¿Code of Civil Procedure section 430.41, subdivision (a)(3) and Code of Civil Procedure section 435.5, subdivision (a)(3) within 15 days of this order.¿¿ 

Inveserve is ordered to give notice of this ruling. 

DATED:  July 29, 2022                                  ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court