Judge: Teresa A. Beaudet, Case: 22STCV20325, Date: 2023-03-29 Tentative Ruling

Case Number: 22STCV20325    Hearing Date: March 29, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On June 21, 2022, Plaintiff Chris Williams (“Plaintiff”) filed the instant action against Defendant Las Virgenes Unified School District (“Defendant”).

On October 27, 2022, Plaintiff filed the operative First Amended Complaint (“FAC”). The FAC asserts causes of action for (1) race discrimination; (2) age discrimination; (3) disability discrimination; (4) failure to provide reasonable accommodations; (5) failure to engage in the interactive process; (6) retaliation;  (7) violation of the California Family Rights Act; (8) failure to take all reasonable steps necessary to prevent and correct discrimination and retaliation; and (9) wrongful termination in violation of public policy; (10) failure to provide meal and rest breaks, and (11) failure to provide itemized statement to employee.  

             Defendant now demurs to the first, second, and ninth causes of action of the FAC. Plaintiff opposes.

Discussion

As an initial matter, the Court notes that Defendants’ counsel’s declaration filed in support of the demurrer indicates, inter alia, “[o]n or about November 4, 2022, I sent an updated meet and confer regarding the First Amended Complaint to Plaintiff’s counsel. A true and correct copy is attached hereto as Exhibit ‘B’. I requested that Mr. Westmoreland let me know by November 8, 2022, whether plaintiff was willing to amend the complaint. To date, I have not received a response.” (Marcus Decl., ¶ 7.) 

The Court notes that the Defendant’s counsel’s declaration does 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. 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.) 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, Defendant’s reply in support of the demurrer notes that Plaintiff’s opposition to the demurrer was untimely filed and served. Pursuant to Code of Civil Procedure section 1005, subdivision (b), “[a]ll papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” In addition, under ¿Code of Civil Procedure section 1010.6, subdivision (a)(4)(B)¿, “[a]ny period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days.”

Nine court days prior to the March 29, 2023 hearing is March 16, 2023. Plaintiff’s opposition was filed on March 21, 2023, and the proof of service attached to Plaintiff’s opposition indicates that the opposition was served by electronic transmission on March 21, 2023. Accordingly, the opposition was untimely filed and served.

As Defendant notes, Plaintiff’s opposition was served only one day prior to Defendant’s deadline for filing a reply in support of the demurrer. Five court days prior to the March 29, 2023 hearing is March 22, 2023.

In light of the foregoing, the hearing on Defendant’s demurrer is continued to May 22, 2023 at 2 p.m. in Dept. 50.¿

Defendant is 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, Defendant 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.¿

In addition, if the parties are unable to resolve the pleading issues, Defendant may file a new reply in support of the demurrer 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). 

IF THE MATTER IS NOT RESOLVED VIA THE MEETING AND CONFERRING, PLAINTIFF IS REMINDED TO DELIVER A COURTESY COPY OF THE OPPOSITION TO DEPARTMENT 50.

Defendant is ordered to give notice of this order.¿¿ 

DATED:  March 29, 2023                              ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court