Case Number: 18PSCV00002 Hearing Date: February 14, 2019 Dept: J

HEARING DATE: Thursday, February 14, 2019

NOTICE: OK

RE: Tahmizian v. Macias (18PSCV00002)

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Defendant Christina Macias’ DEMURRER TO PLAINTIFF’S COMPLAINT

Responding Party: Plaintiff, Kirk Tahmizian

Tentative Ruling

Defendant Christina Macias’ Demurrer to Plaintiff’s Complaint is CONTINUED to ________________________________.

Background

Plaintiff Kirk Tahmizian (“Plaintiff”) alleges that his niece, Defendant Christina Macias (“Christina”), and Christina’s husband, Defendant Richard Macias (“Richard”) asked Plaintiff for money in 2014 so that they could bring down their debt and qualify for a loan to buy a new house located at 320 Via Blanca, San Dimas, CA 91773. Plaintiff alleges that Christina and Richard promised to sell their previous primary residence located at 219 North Bromley Ave, West Covina, CA 91790 (“West Covina Property”) within a reasonable time, but no later than four years of 2014, and promised to pay Plaintiff back with the proceeds of the sale of the West Covina Property. Plaintiff alleges that Defendants did not keep their promises and instead leased the West Covina Property. On October 9, 2018, Plaintiff filed a complaint, alleging causes of action against Defendants Richard, Christina and Does 1-10 for:

Breach of Contract

Common Counts

Intentional Tort

A Case Management Conference is set for March 6, 2019.

Discussion

Christina demurs, per CCP § 430.10(e)&(f), to the first through third causes of action in Plaintiff’s complaint, on the basis that they fail to state facts sufficient to constitute causes of action and are uncertain. Christina further demurs to the first cause of action per subsection (g), on the basis that it cannot be ascertained whether the contract is written, oral or implied by conduct.

Christina’s Demurrer is CONTINUED to ___________________. CCP §§ 128 and 430.41[1]. CCP § 430.41 was added October 1, 2015, and effective for any and all demurrers filed after January 1, 2016, 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. This demurrer was filed on January 18, 2019. Christina’s counsel Francisco A. Suarez (“Suarez”) submitted a declaration, advising that he made meet and confer efforts via a letter sent to Plaintiff’s counsel Evgeny Swarvski (“Swarovski”) on or around November 19, 2018 and via email and telephone communications on or around December 6 and 7, 2018. In opposition, Swarovski has attached Suarez’s November 19, 2018 letter, which reads, in chief part, as follows: “Please be aware that we are unable to discipher [sic] your lawsuit specified above and therefore request that you drop the lawsuit or we will have no other choice but to demurrer [sic] to your action.” Swarovski further attests that “[n]o effort to meet and confer regarding threatened demurrer was undertaken by defendants until December 4, 2018. On that day Mr. Suarez called and again threatened to file a demurrer. He was offered to discuss the issue with authorities via email. He refused. . .” (Swarovski Decl., ¶5.) Swarovski attaches an email Suarez sent on December 5, 2018, which reads in chief part: “This communication is to again advise you that you will be facing a demurrer to your complaint filed on October 9, 2018. This is a continuation of our conversation of yesterday in which you insisted that we were not finished with our meet and confer conference. Again, your complaint violates Code of Civil Procedure Section 430.10(g) and 430.10(f) as the complaint suffers from being ambiguous fails [sic] to state a cause of action.”

The foregoing meet and confer efforts are insufficient for purposes of CCP § 430.41. As such, the hearing demurrer will be continued. Christina’s counsel must file a declaration directly in Department J in compliance with CCP § 430.41(a)(3) at least 10 court days prior to the continued hearing date.

Moving party is to give notice.

[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 form 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…”