Judge: Teresa A. Beaudet, Case: 23STCV03891, Date: 2023-08-11 Tentative Ruling

Case Number: 23STCV03891    Hearing Date: November 2, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

            Plaintiff Joe Bousleiman (“Plaintiff”) filed this action on February 22, 2023 against Defendants Youssef Sawaya (“Sawaya”) and Sawaya Construction. The Complaint alleges causes of action for (1) disgorgement pursuant to Business and Professions Code section 7031, (2) intentional misrepresentation, (3) negligent misrepresentation, (4) violation of Consumers Legal Remedies Act, (5) unfair competition, (6) unjust enrichment, and (7) professional negligence.

            Sawaya now demurs to each of the causes of action of the Complaint. Plaintiff opposes.

Discussion

A.    Procedural Issues

As an initial matter, Plaintiff objects to the instant demurrer on the grounds that it is untimely.[1] Pursuant to Code of Civil Procedure section 430.40, subdivision (a), “[a] person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” On March 14, 2023, Plaintiff filed a proof of service in this action indicating that Sawaya was served with the Complaint by substituted service on March 9, 2023. Plaintiff thus states that Sawaya’s initial deadline demur to Plaintiff’s Complaint was April 10, 2023. (Objection at p. 2:16.)

Pursuant to California Rules of Court, rule 3.110, subdivision (d), “[t]he parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint.”

Plaintiff’s counsel states in his supporting declaration that “[o]n or about April 4, 2023, [Sawaya’s] counsel contacted my office and requested an extension to file a responsive pleading. On this day, a potential demurrer was not discussed during [Sawaya’s] counsel’s extension request. Based upon the conversation that I had with Defendant’s counsel on this date it was my belief that [Sawaya] intended to file an Answer.” (Khoury Decl., ¶ 5.) Plaintiff’s counsel states that “[o]n or about April 4, 2023 my office provided [Sawaya] with an extension until April 24, 2023 to file a responsive pleading, again on the belief that [Sawaya] would be filing an Answer since no potential demurrer was discussed.” (Khoury Decl., ¶ 6.)

Plaintiff’s counsel further indicates that “[o]n April 25, 2023, I viewed an e-mail sent from [Sawaya’s] counsel’s office (showing the date of April 24, 2023 at approximately 6 p.m.) in which Defendant requested an additional extension to file a ‘responsive pleading.’” (Khoury Decl., ¶ 11.) Plaintiff’s counsel states that “[o]n April 25, 2023, my office responded to [Sawaya’s] counsel informing [Sawaya] that [Sawaya] had failed to meet-and-confer on any responsive pleading other than an Answer…and therefore, [Sawaya’s] request for an additional extension was denied.” (Khoury Decl., ¶ 12.)

As noted by Plaintiff, Sawaya’s instant demurrer was filed on April 26, 2023, and the proof of service attached to the demurrer indicates that it was served on April 26, 2023. As set forth above, Plaintiff’s counsel states that Sawaya was only provided an extension until April 24, 2023 to file a responsive pleading. (Khoury Decl., ¶ 6.) Plaintiff thus asserts that the instant demurrer is untimely. The Court notes that Sawaya did not file any reply in support of the instant demurrer, or any response to Plaintiff’s objection to the demurrer. Thus, Sawaya does not address Plaintiff’s evidence above or dispute that the instant demurrer is untimely.

In light of the foregoing, Sawaya’s demurrer to the Complaint is overruled.

Conclusion

For the foregoing reasons, the Court overrules Sawaya’s demurrer to the Complaint in its entirety.

The Court orders Sawaya to file and serve an answer to the Complaint within 10 days of the date of this Order.¿ 

Plaintiff is ordered to give notice of this Order.¿ 

DATED:  November 2, 2023                          ________________________________

Hon. Rolf M. Treu

Judge, Los Angeles Superior Court