Judge Wesley L. Hsu, Case Number: 22STCV23503, Date: 2023-05-15 Tentative Ruling

1. The hearing on Defendant City of Claremont’s (also erroneously sued as Oak Park Cemetery) Demurrer to Complaint is CONTINUED to June 15, 2023 at 9:30 a.m. [see below].

2. The hearing on Defendant City of Claremont’s (also erroneously sued as Oak Park Cemetery) Motion to Strike Portions of Complaint is CONTINUED to June 15, 2023 at 9:30 a.m. [see below].

Plaintiffs Alberto Velasquez, Sr., Edith Velasquez, Matthew Chavez, Anthony Velasquez and Priscilla Velasquez (collectively, “Plaintiffs”) allege as follows:

Plaintiffs are the parents and siblings of decedent Alberto Velasquez Jr. (“Albert Jr.”) Albert Jr.’s body was being interned in the Oak Hills Cemetery. On July 31, 2022, defendants used defective lowering straps which caused the coffin containing Albert Jr.’s body to crash and the lid to fly open, exposing Albert Jr.’s body. Defendants then used a “tractor backhoe” to place the coffin into the concrete burial hole and negligently broke a waterline causing water to flood the excavated burial site.

On July 20, 2022, Plaintiffs filed a complaint, asserting causes of action against City of Claremont, Oak Park Cemetery and Does 1-100 for:

On September 27, 2022, this case was transferred from Department 31 of the personal injury court to this instant department.

Defendant City of Claremont (also erroneously sued as Oak Park Cemetery) (hereinafter, “Defendant”) demurs, pursuant to Code of Civil Procedure § 430.10, subdivision (e), to the first through third causes of action in Plaintiffs’ complaint, on the basis that they each fail to state facts sufficient to constitute causes of action. Defendant also demurs to the third cause of action, per subdivision (f), on the basis of uncertainty.

The hearing on the demurrer will be CONTINUED to June 15, 2023 at 9:30 a.m. (Code Civ. Proc., §§ 128; 430.41[1].) Code of Civil Procedure § 430.41 requires a demurring party in certain civil actions, before filing the demurrer, to engage in a specified meet and confer process with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached as to the filing of an amended pleading that would resolve the objections to be raised in the demurrer.

Defendant’s demurrer is not accompanied by a Code of Civil Procedure § 430.41 meet and confer declaration; as such, the hearing will be continued. Counsel for Defendant must file a declaration in compliance with Code of Civil Procedure § 430.41 at least nine court days prior to the continued hearing date.

The hearing on the motion to strike will be CONTINUED to June 15, 2023 at 9:30 a.m. (Code Civ. Proc., §§ 128; 435.5[2].) Code of Civil Procedure § 435.5 requires a moving party in certain civil actions, before filing a motion to strike, to engage in a specified meet and confer process with the party who filed the pleading that is subject to a motion to strike for the purpose of determining whether an agreement can be reached as to the filing of an amended pleading that would resolve the objections to be raised in the motion to strike.

Defendant’s motion is not accompanied by a Code of Civil Procedure § 435.5 meet and confer declaration; as such, the hearing will be continued. Counsel for Defendant must file and serve a declaration in compliance with Code of Civil Procedure § 435.5 at least nine court days prior to the continued hearing date.

[1] This provision reads, in relevant part, as follows: “(a) Before 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.

(1) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.

(2) The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.

(3) The 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…”

[2] This provision reads, in relevant part, as follows: “(a) Before filing a motion to strike pursuant to this chapter, 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. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading.

(1) As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the pleading could be amended to cure any legal insufficiency.

(2) The parties shall meet and confer at least five days before the date a motion to strike must be filed. If the parties are not able to meet and confer at least five days before the date the motion to strike must be filed, the moving party shall be granted an automatic 30-day extension of time within which to file a motion to strike, by filing and serving, on or before the date a motion to strike must be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the motion to strike was previously due, and the moving party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.

(3) The moving party shall file and serve with the motion to strike a declaration stating either of the following:

(A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion to strike, and that the parties did not reach an agreement resolving the objections raised by the motion to strike.

(B) That the party who filed the pleading subject to the motion to strike failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith…”