2017-00214451-CU-MC

William Doan vs. Asish Goshal

Nature of Proceeding: Hearing on Demurrer to 1st Amended Complaint

Filed By: Gosling, Sarah C.

Defendant’s Demurrer to Plaintiff’s First Amended Complaint is treated as unopposed and is SUSTAINED, with leave to amend.

Counsel for defendant has filed a meet and confer declaration reflecting five attempted telephone calls with four voice messages to the self-represented plaintiff to comply with CCP 430.41. Plaintiff submits his own declaration reflecting that he waited two weeks to return the telephone call, then made several phone calls either leaving no voice mail or calling after hours. It is apparent that this matter will not be resolved by meet and confer.

The Court would note that a self-represented party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. ( Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal. App. 3d 941, 944) Thus, as is the case with attorneys, self-represented litigants must follow correct rules of procedure. Nwosu v. Uba (2004) 122 Cal. App. 4th 1229, 1246-1247; see also Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 984.

Plaintiff’s Opposition to the Demurrer has not been properly served. The service was by email only, despite defendants’ refusal to accept email. Code Civ. Proc., § 1010.6

(a) (2)(A) (i) provides: (i) A document may be served electronically in an action filed with the court as provided in this section, in accordance with rules adopted pursuant to subdivision (e)….For cases filed on or before December 31, 2018, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document isnotauthorized unless a party or other person has agreed to accept electronic service in that specific actionor the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d). [Emphasis added.]

Here, the history between the parties, as set forth in the Reply, reflects that plaintiff has been informed multiple times that the defendant does NOT agree to electronic service, yet the opposition papers are nonetheless served by email and end up in the defendant’s “SPAM” folder or have even been retracted by plaintiff, prior to being read by the defense.

Plaintiff has no authority to serve opposing counsel by email absent a stipulation or Court order. See, CCP §1013(g). The court has not and will not order service by email in this action. While CCP §1005 permits opposition by personal delivery, fax transmission, express mail, or other means calculated to ensure timely delivery, a consent to or order for electronic service must be filed in the action. (CCP §1013(g). No such consent or order appears.

On Nov. 17, 2017, this Court sustained the prior demurrer to plaintiff’s original complaint with leave to amend. The original complaint set forth two causes of action only: for “Tortious Violation California Civil Code § 52.1(b)” and Intentional Infliction of Emotional Distress.

Plaintiff filed an amended complaint on November 30, 2017, setting forth five causes of action: trespass to chattel; intentional infliction of emotional distress; negligent hiring and retention; assault; and, battery.

Following an order sustaining a demurrer with leave to amend, the plaintiff may amend his complaint only as authorized by the court’s order. Plaintiffs are not permitted to add new causes of action that were not asserted in prior complaints nor to amend to add new defendants, where that exceeded the scope of the court’s order granting leave to amend the original complaint. (Harris v. Wachovia Mortg., FSB, (2010) 185 Cal.App.4th 1018, 1023.)

Should plaintiff wish to amend to add new causes of action or parties, a noticed motion for leave to amend under C.C.P., sec. 473 must be made.

Here, as plaintiff’s Opposition was not properly served, it is not considered by the Court. The failure to file opposition is taken as a concession to the merits of the demurrer.

Plaintiff may have leave to file and serve his Second Amended Complaint only as to the two causes of action set forth in the original complaint only not later than Wed., April 4, 2018. The responsive pleading shall be due filed and served 30 calendar days thereafter (35 days if service is by mail). Email service is not permitted.