Case Number: 18STLC12789 Hearing Date: February 06, 2020 Dept: 25

DEMURRER

(CCP § 430.31, et sq.)

TENTATIVE RULING:

Defendant Rosa Urbina’s Demurrer is CONTINUED TO APRIL 22, 2020 AT 10:30 A.M. in Department 25, SPRING STREET COURTHOUSE.

At least 16 court days prior to the new hearing date, Defendant is to file and serve a declaration demonstrating compliance with the meet and confer requirement and a proof of service demonstrating Plaintiff was properly served with this Demurrer. Failure to comply with the Court’s order may result in the Demurrer being placed off calendar or denied. Any opposition and reply papers may be filed and served per Code of Civil Procedure section 1005.

I. Background

On October 9, 2018, Plaintiff Lenin Lopez (“Plaintiff”) filed a contract form complaint against Defendants Rosa Urbina (“Urbina”) and Last Resource Multi Services, Inc. (collectively, “Defendants”). Plaintiff has not filed a proof of service for the Summons and Complaint as to any Defendant.

On June 28, 2019, Urbina filed a Form Declaration of Demurring or Moving Party in Support of Automatic Extension (the “Form Declaration”) with a copy of a meet and confer letter sent to Plaintiff on June 24, 2019. (Form Decl., Attach.) On the Form Declaration, however, Urbina did not indicate when a responsive pleading was due not does she state when she was served with the Summons and Complaint. (Id., ¶ 2.)

On July 11, 2019, Urbina filed the instant Demurrer to the Complaint of Lenin Lopez (the “Demurrer”). To date, no opposition or reply briefs have been filed.

II. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[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.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

III. Discussion

Service of the Moving Papers

As an initial matter, the Court notes that Defendant Urbina did not file a proof of service demonstrating Plaintiff was served with this Motion. Code of Civil Procedure section 1005, subdivision (b) requires that all moving and supporting papers be served upon the opposing party at least 16 court days before the hearing of a motion, plus an additional five calendar days if the moving papers are mailed to a California address. Thus, the Court cannot consider the merits of the Demurrer at this time. Defendant Urbina is ordered to file a proof of service demonstrating Plaintiff has been served with the instant Motion.

Meet and Confer Requirement

In addition, although Defendant Urbina filed a declaration in support of an extension, she did not include a declaration with the instant Demurrer. Code of Civil Procedure section 430.41, subdivision (a) requires that the parties meet and confer in person or by telephone. Further, Code of Civil Procedure section 430.41, subdivision (a)(3) requires that the declaration state either the means by which the demurring party met and conferred with the other party, and that the parties were unable to reach an agreement as to the objections in the demurrer or that the party that filed the pleading subject to the demurrer failed to respond or otherwise meet and confer in good faith with the demurring party.

Accordingly, Defendant Urbina is ordered to file and serve a supplemental declaration demonstrating compliance with the meet and confer requirement.

IV. Conclusion & Order

Defendant Rosa Urbina’s Demurrer is CONTINUED TO APRIL 22, 2020, AT 10:30 A.M. in Department 25, SPRING STREET COURTHOUSE.

At least 16 court days prior to the new hearing date, Defendant is to file and serve a declaration demonstrating compliance with the meet and confer requirement and a proof of service demonstrating Plaintiff was properly served with this Demurrer. Failure to comply with the Court’s order may result in the Demurrer being placed off calendar or denied. Any opposition and reply papers may be filed and served per Code of Civil Procedure section 1005.

Moving party is ordered to give notice.