Judge Salvatore Sirna, Case Number: 23PSCV00327, Date: 2023-04-26 Tentative Ruling

Judge: Salvatore Sirna, Case: 23PSCV00327, Date: 2023-04-26 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 23PSCV00327 Hearing Date: April 26, 2023 Dept: G

Defendant General Motors LLC’s Demurrer to Plaintiff’s Complaint

Respondent: Plaintiff Rubisela Martinez Chavarin

Defendant General Motors LLC’s Motion to Strike Punitive Damages from Plaintiff’s Complaint

Respondent: Plaintiff Rubisela Martinez Chavarin

TENTATIVE RULING

Defendant General Motors LLC’s Demurrer to Plaintiff’s Complaint and Motion to Strike Punitive Damages from Plaintiff’s Complaint are CONTINUED TO May 31, 2023, 8:30 a.m., Dept. G (Pomona).

Defendant is also ordered meet and confer with Plaintiff’s counsel regarding the Demurrer and Motion to Strike and to file a supplemental declaration describing such meet and confer efforts at least (9) court days before the next scheduled hearing.

BACKGROUND

This is a lemon law action. On April 30, 2017, Plaintiff Rubisela Martinez Chavarin entered into a warranty contract with Defendant General Motors LLC by purchasing a 2017 Chevrolet Colorado. Subsequently, Plaintiff alleges the vehicle exhibited transmission defects.

On February 3, 2023, Plaintiff filed a complaint against Defendant and Does 1-10, alleging (1) breach of express warranty, (2) breach of implied warranty, (3) violation of Song-Beverly Act section 1793.2, subdivision (b), and (4) fraudulent concealment.

On March 15, 2023, Defendant filed the present demurrer and motion to strike. Prior to filing, Defendant’s counsel attempted to meet and confer telephonically with Plaintiff’s counsel but was unsuccessful. (Davis Decl., ¶ 2.)

A hearing on the demurrer and motion to strike is set for April 26, 2023. A case management conference and OSC re: Failure to File Proof of Service is also set for June 26.

ANALYSIS

Defendant demurs to Plaintiff’s fourth cause of action (fraudulent concealment) on the grounds that it (1) is barred by the applicable statute of limitations and (2) fails to state a claim. For the following reasons, the court finds parties did not adequately meet and confer.

Legal Standard

Pursuant to Code of Civil Procedure section 430.41, subdivision (a), prior to filing a demurrer, “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.” This section further provides that “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.” (Code Civ. Proc., § 430.41, subd. (a)(1).)

While Code of Civil Procedure section 430.41, subdivision (a)(4) makes clear failing to meet and confer is not grounds to overrule a demurrer, courts “are not required to ignore defects in the meet and confer process” and if the court determines “no meet and confer has taken place, or concludes further conferences between counsel would likely be productive, it retains discretion to order counsel to meaningfully discuss the pleadings with an eye toward reducing the number of issues or eliminating the need for a demurrer, and to continue the hearing date to facilitate that effort.” (Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 355 & fn. 3.)

Similarly, prior to filing a motion to strike, “the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc, § 435.5, subd. (a).) This section further provides that “the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies.” (Code Civ. Proc., § 435.5, subd. (a)(1).) However, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a)(4).)

Discussion

In the present case, Defendant’s counsel describes the meet and confer efforts as follows:

“Prior to filing GM’s Demurrer and Motion to Strike, this office attempted to meet and confer telephonically with Plaintiff’s counsel to discuss the issues we had with Plaintiff’s Complaint, but unfortunately, were unsuccessful in our attempts.” (Davis Decl., ¶ 2.)

The above declaration is vague and fails to identify how and when counsel attempted to meet and confer. It is unclear if counsel actually attempted to contact Plaintiff’s counsel by phone or if counsel merely sent a request for a telephone call via letter. And it is not clear if counsel was unable to get in contact Plaintiff’s counsel or did but was unable to resolve their issues. Last, Plaintiff’s counsel also provided a declaration stating Defendant’s counsel did not contact Plaintiff’s counsel. (Terzian Decl., ¶ 4.) Without more information from Defendant’s counsel and in light of the claim by Plaintiff’s counsel, the court finds meet and confer efforts inadequate. Accordingly, the court finds a continuance of the hearing on Defendant’s demurrer and motion to strike appropriate.

CONCLUSION

Based on the foregoing, Defendant’s demurrer to Plaintiff’s complaint is CONTINUED TO May 31, 2023, 8:30 a.m., Dept. G (Pomona).

Defendant’s counsel is also ordered meet and confer with Plaintiff’s counsel regarding the Demurrer and Motion to Strike and to file a supplemental declaration describing such meet and confer efforts at least (9) court days before the next scheduled hearing.