Case Number: BC493879    Hearing Date: August 08, 2014    Dept: 34

(1) Demurrer to Second Amended Complaint in Yang v. Navidbakhsh;

(2) Demurrer to First Amended Complaint in the consolidated action of Melgar v. Navidbakhsh

Moving Party: Defendants Soheil Navidbakhsh (“Navidbakhsh) and Educational Awareness Center LLC (“EAC”)

Resp. Party: Plaintiff Tsan Yang; plaintiff Lorena Melgar

Defendants’ demurrers are OVERRULED.

PRELIMINARY COMMENTS:

The Court wishes to remind the parties that trial is scheduled in these consolidated matters for Sept. 15, 2014, with a Final Status Conference to be held on August 28, 2014. The trial date is almost two years after the original complaint was filed, and the court is not inclined to continue the trial date.

The court also wishes to remind counsel that they must comply with the Court’s orders regarding the FSC, which can be found obtained in Dept. 34 or online at http://www.lasuperiorcourt.org/courtroominformation/ui/resultpopup.aspx?value=LAM/34.

The Court also notes that defendants filed their demurrer to the FAC in Melgar v. Navidbakhsh under case number BC507708. In its 1/29/14 order, the Court stated: “Case No. BC483879 is deemed the lead case and all proceedings and filings will occur under that case number.”

BACKGROUND:

Plaintiff Yang commenced BC493879 on 10/14/13, against defendants for: (1) negligence; (2) battery; (3) sexual battery; (4) intentional infliction of emotional distress; (5) negligent infliction of emotional distress; (6) stalking; and (7) Unruh Civil Rights Act. On 8/13/13, the Court sustained defendants’ demurrer to the first, fifth, and sixth causes of action in the complaint, sustained Educational Awareness Center LLC’s demurrer to the second and third causes of action, and overruled Navidbakhsh’s demurrer to the second and third causes of action. The Court granted plaintiff leave to amend.

Yang filed a first amended complaint (“FAC”) on 8/30/13, alleging the same seven causes of action. On 1/17/14, the Court sustained defendants’ demurrer to the first, fourth, fifth, sixth, and seventh causes of action, with leave to amend. Yang filed a second amended complaint on 1/31/14, alleging the same seven causes of action.

Plaintiff Melgar commenced BC507708 on 5/2/13, against defendants for: (1) negligence; (2) battery; (3) sexual battery; (4) intentional infliction of emotional distress; (5) stalking; and (6) Unruh Civil Rights Act. On 12/5/13, the Court sustained defendants’ demurrer to the first, fourth, fifth, and sixth causes of action, with leave to amend, and sustained defendant Educational Awareness’s demurrer to the first and second causes of action, with leave to amend. Melgar filed a first amended complaint on 12/24/13, alleging the same seven causes of action.

On 1/29/14, the Court ordered the cases related and consolidated.

ANALYSIS:

Defendants’ demurrers are untimely. Demurrers must be made within 30 days after service of the complaint. (See Code Civ. Proc., §§ 430.40(a).) Defendants were served with the SAC in BC493879 by mail on 1/29/14. Defendants were served with the FAC in BC507708 by mail on 12/23/13. Therefore, defendants had until 2/28/14, at the latest, to respond to the SAC and until 1/22/24, at the latest, to respond to the FAC. Defendants did not file the instant demurrers until 7/11/14 – 163 days after service of the SAC and 200 days after service of the FAC.

As indicated above in its Preliminary Comments, trial in these consolidated matters is scheduled in five weeks; the final status conference will be held in 20 days. Defendants provide no explanation for their extreme delay in filing the instant demurrers. Although the court has discretion to consider an untimely demurrer (see e.g., Jackson v. Doe (2011) 192 Cal.App.4th 742, 750), the Court sees no reason to do so here.

Defendants’ demurrers are OVERRULED. Defendants to answer within 5 days.