Ismael Beserra vs Daniel Stehno

Case Number

23CV02383

Case Type

Hearing Date / Time

Mon, 12/18/2023 - 10:00

Nature of Proceedings

Demurrer re: Plaintiff's First Amended Complaint

Tentative Ruling

Ismael Beserra v. Daniel Stehno 

Case No. 23CV02383

           

Hearing Date: December 18, 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 of defendant Daniel Stehno is ordered off calendar. Plaintiff Ismael Beserra shall serve notice of this ruling on defendant and file proof of service with the court. Defendant Stehno shall file and serve his answer to plaintiff’s first amended complaint on or before 15 days after service of notice of this ruling.

Background:

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 Stehno 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 on October 18, 2023. The declaration attached to the demurrer state that Stehno sent a text message to plaintiff Beserra personally in an effort to meet and confer regarding the defects in the FAC asserted by Stehno. (Stehno decl., ¶ 2.)

On November 20, 2023, the court held its initial hearing on the demurrer. The court noted that because plaintiff was represented by counsel, service on plaintiff personally was insufficient and there was no proof of service of the demurrer on counsel for plaintiff. The court also noted that Stehno had not presented a declaration showing a meet and confer process with counsel for plaintiff. The court continued the hearing to this date to allow Stehno to address these deficiencies.

No opposition or other response to the demurrer has been filed by plaintiff. Stehno has not filed anything with the court in response to the court’s ruling on November 20, 2023.

Analysis:

The two fundamental problems identified in the court’s November 20, 2023, ruling remain unchanged and uncured.

“[I]n all cases where a party has an attorney in the action or proceeding, the service of papers, when required, must be upon the attorney instead of the party ….” (Code Civ. Proc., § 1015; accord, Cal. Rules of Court, rule 1.21(a).) There remains no proof of service of the demurrer on plaintiff’s counsel. The hearing on the demurrer therefore cannot go forward.

“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.” (Code Civ. Proc., § 430.41, subd. (a).)

“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.” (Code Civ. Proc., § 430.41, subd. (a)(3).)

Because plaintiff was represented by counsel at the time of the filing of the demurrer, Stehno was required to file with the demurrer a declaration showing a meet and confer process, or meet and confer attempt, with plaintiff’s counsel. The declaration accompanying the demurrer shows only an attempt to meet and confer with the plaintiff personally. Thus, the declaration does not meet the requirements of section 430.41.

On the court’s own motion (Code Civ. Proc., § 436, subd. (b)), the court strikes the demurrer of defendant Stehno for failing to comply with the mandatory pre-filing meet-and-confer requirement of Code of Civil Procedure section 430.41, subdivision (a) and for failing to provide proof of service of the demurrer on counsel for plaintiff (Cal. Rules of Court, rule 3.1300(c)). Hearing on the demurrer is therefore ordered off calendar.

Plaintiff will be ordered to serve written notice of this ruling. Defendant shall file and serve his answer to the FAC following service of the written notice of ruling, which time may be extended, to the extent applicable, based upon the manner of service of the notice of ruling under Code of Civil Procedure sections 1010.6 or 1013.