Judge Teresa A. Beaudet, Case 22STCV08882 2022-10-03 Tentative Ruling

CLIFTON BERNARD,

Plaintiff,

vs.

THE CITY OF BURBANK, et al.,

Defendants.

Case No.:

22STCV08882

Hearing Date:

October 3, 2022

Hearing Time: 2:00 p.m.

ORDER RE:

DEFENDANT CITY OF BURBANK’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR DAMAGES

On March 11, 2022, Plaintiff Clifton Bernard (“Plaintiff”) initiated the instant action against Defendant the City of Burbank (the “City”). Plaintiff filed the operative First Amended Complaint (“FAC”) on May 31, 2022, asserting causes of action for (1) age discrimination, (2) race discrimination, (3) retaliation, (4) harassment, (5) failure to prevent discrimination and harassment, and (6) whistleblower retaliation.

The City now demurs to each of the causes of action of the FAC. Plaintiff opposes.

As an initial matter, the Court notes that the City’s counsel’s declaration in support of the demurrer provides, inter alia, that “[o]n Tuesday, June 28, 2022, the parties met and conferred regarding the substantive challenges the City intended to make to Plaintiff’s First Amended Complaint. The parties were unable to resolve the issues raised by the City’s demurrer, requiring the current pleading.” (Clark Decl., ¶ 12.) The Court notes that the City’s counsel’s declaration does not demonstrate that the parties met and conferred by telephone or in person, or that the City’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.” (Emphasis added.) Such meeting and conferring must be done in good faith with an effort to try to resolve the issues subject to the demurrer.

In addition, pursuant to Code of Civil Procedure section 430.41, subdivision (a)(3), “[t]he demurring party shall file and serve with the demurrer a declaration stating either of the following: (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Emphasis added.)

In light of the foregoing, the hearing on the City’s demurrer is continued to November 4, 2022, at 10:00 a.m. in Dept. 50. The Case Management Conference is continued to the same date, time and location.

The City is¿ordered to meet¿and confer¿with Plaintiff¿in person or via telephone 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, the City 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) within 15 days of this Order.¿

The Court also notes that no courtesy copies of the demurrer and reply were received. Courtesy copies of any filings with a memorandum of points and authorities must be delivered to the department concurrently with filing.

Superior Court of California

County of Los Angeles

Department 50