Demurrer
July 31, 2026 Dept. 9 Civil Tentative Rulings
14. 25CV1068 JAMES R. MAUSS ET AL VS. YURIY KOLOTYUK DEMURRER
Pursuant to Code of Civil Procedure § 430.10(e), Cross-Defendant, Burne Engineering Services, Inc. (“Cross-Defendant”), demurrers to Cross-Complainant’s, Yuriy Kolotyuk (“Cross- Complainant”), First Amended Cross-Complainant (“FACC”). On July 20, 2026, Cross-Complainant filed an opposition. Meet and Confer Requirement Code of Civil Procedure §430.41(a) provides: 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.
Code of Civil Procedure §430.41(a)(3): 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.
Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal. App. 5th 348 (“If, upon review of a declaration under section 430.41, subdivision (a)(3), a court learns 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”).
Based on the Declaration of Janine M. Fiel-Cosse counsel attempted to meet and confer with Cross-Complainant prior to filing but received no response.
Background
Cross-Complainant filed the Cross-Complaint on June 16, 2025, which did not contain a Certificate of Merit. The Certificate of Merit was filed on March 18, 2026. On April 13, 2026, Cross-Complainant filed a First Amended Complaint against Cross-Defendants and Roes 1 through 50, for: 1) Breach of Contract; 2) Negligence; 3) Common Counts (Money Had and
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July 31, 2026 Dept. 9 Civil Tentative Rulings
Received); 4) Comparative Indemnity and Declarative Relief; 5) Total Equitable Indemnity and Declaratory Relief. Legal Principles [A] demurrer challenges only the legal sufficiency of the complaint, not the truth or the accuracy of its factual allegations or the plaintiff’s ability to prove those allegations.” (Amarel v. Connell (1998) 202 Cal.App.3d 137, 140.) A demurrer is directed at the face of the complaint and to matters subject to judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) All properly pleaded allegations of fact in the complaint are accepted as true, however improbable they may be, but not the contentions, deductions or conclusions of facts or law. (Blank v. Kirwan (1985) 39 Cal.3d gives “the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank, supra, 39 Cal.3d at p. 318.)
Discussion
Cross-Defendant generally demurrers to Cross-Complainant’s FACC because Cross- Complainant failed to timely file a certificate of merit as required pursuant to Code of Civil Procedure § 411.35. In addition and/or in the alternative, Cross-Defendant specially demurrers to the First, Second, Third, Fourth, and Fifth Causes of Action in the FACC. Certificate of Merit Cross-Defendant argues that Cross-Complainant failed to file a Certificate of Merit prior to filing the original Cross-Complaint on June 16, 2025, and did not file it until March 18, 2026, which is beyond the applicable statute of limitations pursuant to Code of Civil Procedure § 411.35.
Cross-Complainant asserts that as the Certificate of Merit was served before the FACC was served, the requirements of Code of Civil Procedure § 411.35(a) have been met. Code of Civil Procedure § 411.35(a) provides that in every action, including a crosscomplaint for damages or indemnity, arising out of the professional negligence of a person holding a valid architect’s certificate shall file and serve a certificate on or before the date of service of the complaint or cross-complaint. Where an attorney is unable to obtain the consultation required because a statute of limitations would impair the action and the certificate required could not be obtained before the impairment of the action, the certificate shall be filed within 60 days after filing the complaint.
Id. at 411.35(b)(2). This case is analogous to Curtis Engineering Corp. v. Superior Court (2017) 16 Cal.App.5th 542. In Curtis Engineering Corp., Plaintiff filed an original complaint on May 3, 2016, but failed to include a certificate. Id. at 545. Plaintiff thereafter filed and served a first amended complaint which included a certificate on December 1, 2016. Id. Plaintiff did not include an excuse certificate regarding the reasoning for his late filed certificate of merit and failed to file a
July 31, 2026 Dept. 9 Civil Tentative Rulings
certificate of merit within 60 days of filing the original complaint. The court accordingly sustained the demurrer without leave to amend as there was no possibility of curing the defect. Id. at 551. The court reasoned this ruling was supported by the Legislature’s intent to give plaintiffs a limited period of time to obtain the necessary consultation and failure to obtain the consultation within that time period would result in dismissal of the complaint. Id. Cross-Complainant’s reliance on Price v.
Dames & Moore (2001) 92 Cal.App.4th 355 is unavailing and was directly addressed in Curtis Engineering Corp. Citing Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 112 Cal.Rptr.2d 65, Sutherland asserts that his failure to file the required certificate of merit with the original complaint can be cured by filing the required certificate of merit with an amended complaint. In Price, however, the plaintiff filed a certificate of merit within the statute of limitations period. (Id. at pp. 358, 361-362, 112 Cal.Rptr.2d 65.)
Although the certificate was defective, because the plaintiff signed it rather than an attorney as required by section 411.35(a), the appellate court held that the trial court should have allowed leave to amend because the defect was curable. (Id. at pp. 360-361, 112 Cal.Rptr.2d 65.) The Price court did not hold that a failure to timely file a certificate of merit within the statutory deadlines may be cured by leave to amend. Curtis Engineering Corp. v. Superior Court (2017) 16 Cal.App.5th 542, 549. (emphasis added) Here, Cross-Complainant filed the Cross-Complaint on June 16, 2025.
The Certificate of Merit was not filed until March 18, 2026, followed by the Amended Cross-Complaint on April 13, 2026. The Certificate of Merit was not filed within the statute of limitations period and the filing of the certificate with the amended complaint does not cure the defect under § 411.35. As there is no reasonable possibility of curing the defect, the Court sustains Cross-Defendant’s demurrer without leave to amend. As the Court has sustained the demurrer, Cross-Defendant’s arguments specially demurring to the First, Second, Third, Fourth, and Fifth Causes of Action will not be addressed.
TENTATIVE RULING #14: CROSS-DEFENDANT’S DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND. NO HEARING ON THIS MATTER WILL BE HELD UNLESS A REQUEST FOR ORAL ARGUMENT IS TRANSMITTED ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY TELEPHONE TO THE COURT AT (530) 621-6551 BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; LOCAL RULE 8.05.07; SEE ALSO LEWIS V. SUPERIOR COURT, 19 CAL.4TH 1232, 1247 (1999). NOTICE TO ALL PARTIES OF A REQUEST FOR ORAL ARGUMENT AND THE GROUNDS UPON WHICH ARGUMENT IS BEING REQUESTED MUST BE MADE BY TELEPHONE OR IN PERSON BY 4:00 P.M.
ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; EL DORADO
July 31, 2026 Dept. 9 Civil Tentative Rulings
COUNTY LOCAL RULE 8.05.07. PROOF OF SERVICE OF SAID NOTICE MUST BE FILED PRIOR TO OR AT THE HEARING. LONG CAUSE HEARINGS MUST BE REQUESTED BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED AND THE PARTIES ARE TO PROVIDE THE COURT WITH THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M. LONG CAUSE ORAL ARGUMENT REQUESTS WILL BE SET FOR HEARING ON ONE OF THE THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M. THE COURT WILL ADVISE THE PARTIES OF THE LONG CAUSE HEARING DATE AND TIME BY 5:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. PARTIES MAY PERSONALLY APPEAR AT THE HEARING.
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