Demurrer to 1st Amended Complaint
34-2021-00311493-CU-FR-GDS: David Ferguson vs. Joshua Bryant 09/26/2024 Hearing on Demurrer to 1st Amended Complaint in Department 53
Tentative Ruling
NOTICE:
Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:
To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.
Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-cagov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.
Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.pdf.
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A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Courts Approved Official Reporter Pro Tempore list.
Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk
34-2021-00311493-CU-FR-GDS: David Ferguson vs. Joshua Bryant 09/26/2024 Hearing on Demurrer to 1st Amended Complaint in Department 53
will forward the form to the Court Reporters Office and an official reporter will be provided.
On the Court's own motion, the Hearing on Demurrer to 1st Amended Complaint scheduled for 09/26/2024 is continued to 10/31/2024 at 01:30 PM in Department 53 at Hall of Justice.
TENTATIVE RULING:
Defendants Joshua Bryant, Miranda Bryant and Element 26 Contracting, Inc.s (collectively, Defendants) demurrer to the first amended complaint (1AC) of Plaintiff David Ferguson (Plaintiff) is CONTINUED to October 31, 2024 at 1:30 p.m. in this department for further meet-and-confer efforts.
Code of Civil Procedure section 430.41, subdivision (a) specifies that the demurring party shall meet-and-confer in person, by telephone, or by video conference with the party filing the pleading that is the subject of the demurrer. (Emphasis added.) Subdivision (a)(2) of Code of Civil Procedure section 430.41 requires the parties to meet and confer at least five days before prior to the date the responsive pleading is due. (Emphasis added.) If the parties are unable to meet and confer five days before the demurrer must be filed, an automatic 30-day extension is granted upon the moving partys filing of a declaration explaining the reasons that the Parties could not meet and confer. (Code Civ. Proc. §430.41, subd. (a)(2).)
Defendants counsels declaration indicates that he sent a meet-and-confer letter on April 24, 2024. (Declaration of Jason M. Sherman (Sherman Decl.) ¶2.) Defense Counsel avers that although he offered to meet and confer by telephone with Plaintiffs counsel, Plaintiffs counsel did not take Defense Counsel up on the offer but simply disagreed with counsels assessment. (Sherman Decl. ¶2.) First, the meet-and-confer requirement of Section 430.41 is not optional. The Parties must attempt to meet-and-confer in person, by telephone, or by video conference prior to the filing of a demurrer. Counsel(s) are admonished for expressly refusing to comply with statute. Second, even if the meet-and-confer had been in person, it was not done five days before the filing of the instant motion.
Accordingly, the matter is continued for the Parties to meet and confer in person, by telephone, or by video conference as required by statute. By no later than October 17, 2024, the Parties shall file a joint declaration detailing their meet-and-confer attempts for the instant demurrer. If the Parties resolve all the issues on the demurrer, Defendant shall promptly contact the Court to drop the matter.
No further briefing is allowed without prior permission by the Court. The only filing allowed is the declaration indicated above.
This minute order is effective immediately. No formal order or other notice is required. (Code
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO
34-2021-00311493-CU-FR-GDS: David Ferguson vs. Joshua Bryant 09/26/2024 Hearing on Demurrer to 1st Amended Complaint in Department 53
Civ. Proc. §1019.5; CRC, Rule 3.1312.)