Judge: Teresa A. Beaudet, Case: 22STCV16695, Date: 2023-01-11 Tentative Ruling

Case Number: 22STCV16695    Hearing Date: January 11, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

            Plaintiff Vincent Smith (“Plaintiff”) filed this action on May 20, 2022 against Defendants

Palmdale School District, Edgar Ortega, Melissa Contri, and Larry Leuck (collectively, “Defendants”). The operative First Amended Complaint (“FAC”) was filed on October 26, 2022 and asserts causes of action for (1) racial harassment (hostile work environment) in violation of FEHA; (2) racial discrimination in violation of FEHA; (3) retaliation in violation of FEHA; (4) failure to prevent harassment, discrimination, and retaliation; and (5) wrongful termination in violation of public policy.

            Defendants now demur to each of the causes of action of the FAC. Defendants also move to strike portions of the FAC. Plaintiff opposes both.

Discussion

As an initial matter, the Court notes that Defendants’ counsel’s declaration filed in support of the demurrer indicates that “[t]he parties previously met and conferred on [certain] issues and Plaintiff agreed to file an amended Complaint.” (Valencia Decl., ¶ 4.) Defendants’ counsel states that “[u]pon review of the First Amended Complaint, it was clear that the issues previously identified had not been resolved and a meet and confer was sent…Several days later Plaintiff sent an email that appeared to be the same arguments initially made during the meet and confer process. As a result, I sent a second email inviting further conversation and discussion if it would be fruitful. I received no response.” (Valencia Decl., ¶¶ 5-6.)

The Court notes that Defendants’ counsel’s declaration and the email correspondence attached as Exhibit “A” to the declaration do not demonstrate that the parties met and conferred by telephone or in person. 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.) 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.) Such meeting and conferring must be done in good faith with an effort to try to resolve the issues subject to the demurrer and motion to strike.

In addition, as noted by Defendants, Plaintiff’s oppositions to the demurrer and motion to strike were untimely filed on January 4, 2023, five court days prior to the noticed January 11, 2023 hearing date.[1] Pursuant to Code of Civil Procedure section 1005, subdivision (b), opposition papers must be served and filed with the court¿at least nine court days¿before the hearing. Defendants’ reply in support of the demurrer indicates, inter alia, that “Plaintiff’s failure to timely file and serve his Opposition prejudiced Defendants and violated their right to be able to adequately file a proper Reply.” (Reply at p. 2:4-6.) Defendants’ reply in support of the motion to strike likewise indicates that Plaintiff’s untimely opposition to the motion to strike prejudiced Defendants.

In light of the foregoing, the hearing on Defendants’ demurrer and motion to strike is continued to February 23, 2023 at 2 p.m. in Dept. 50.¿ 

Defendants are¿ordered to meet¿and confer¿with Plaintiff¿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, Defendants are 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.¿

In addition, if the parties are unable to resolve the pleading issues, Defendants may file new replies in support of the demurrer and/or motion to strike that will supersede the previously filed reply papers. Any new reply must be filed and served per Code of Civil Procedure section 1005, subdivision (b).

Defendants are ordered to give notice of this order.¿ 

DATED:  January 11, 2023                            ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court