Ismael Beserra vs Daniel Stehno

Case Number

23CV02383

Case Type

Hearing Date / Time

Mon, 11/20/2023 - 10:00

Nature of Proceedings

Demurrer re: Plaintiff's First Amended Complaint

Tentative Ruling

Ismael Beserra v. Daniel Stehno                             

Case No. 23CV02383

           

Hearing Date: November 20, 2023                                        

HEARING:              Defendant Daniel Stehno’s Demurrer to Plaintiff’s First Amended Complaint

ATTORNEYS:        For Plaintiff Ismael Beserra: Cristi Michelon Vasquez

                                    For Defendant Daniel Stehno: Self-Represented                    

TENTATIVE RULING:

The demurrer to plaintiff’s first amended complaint is continued to December 18, 2023. Defendant, Daniel Stehno, shall serve notice of the continued hearing date, along with the demurrer, on counsel of record for plaintiff. Defendant shall file proof of service of the notice of continued hearing and demurrer with the court no later than November 27, 2023. Defendant is ordered to attempt to meet and confer with counsel of record for plaintiff, regarding the issues raised by demurrer, and provide a status declaration to the court no later than December 8, 2023.

Plaintiff Ismael Beserra filed his original complaint on June 5, 2023. Beserra filed his operative judicial council form first amended complaint (FAC) on August 21, 2023. The FAC sets forth causes of action for breach of contract and common counts. 

As alleged in the FAC:

On a date not specified in the FAC, “Plaintiff agreed to assist Defendant with the financing of a vehicle because Defendant could not qualify on his own for financing. Defendant agreed to make all payments for monthly installments as well as the registration and maintenance in exchange for Plaintiff co-signing for the vehicle loan.” (FAC, ¶ BC-1.)

On June 4, 2023, “Defendant stopped making payments on the vehicle and Plaintiff was forced to pay the balance due and owing in the amount of $14,419.00.” (FAC, ¶ BC-2.)

On September 28, 2023, plaintiff executed a substitution of attorney whereby Cristi Michelon Vasquez became plaintiff’s attorney of record. The substitution of attorney was served on defendant the same day.

On October 20, 2023, defendant filed his demurrer to the FAC. The demurrer, as reflected in the proof of service filed on the same day, was personally served on plaintiff October 18, 2023.

California law has long held that an adverse party must deal with the other party’s attorney of record and not with the party personally. (See McMunn v. Lehrke (1915) 29 Cal.App. 298, 307; Lyydikainen v. Industrial Acc. Com. (1939) 36 Cal.App.2d 298, 301.)

There is no proof of service reflecting that plaintiff’s attorney of record was served. Further, defendant’s declaration does not reflect that he made any attempt to meet and confer with plaintiff’s attorney regarding the issues raised by the demurrer.

As both the requirements for service of the motion and the meet and confer requirement were not properly complied with, the court will continue the hearing on the demurrer to allow defendant to address the deficiencies.