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Tentative Ruling
Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Jason E. Colbert v. Joanne McClelland

Case No: 17CV04325
Hearing Date: Tue Jan 09, 2018 9:30

Nature of Proceedings: Demurrer

Demurrer of Defendant

Attorneys

For Plaintiff Jason E. Colbert: Self-represented

For Defendant Jo-Ann McClelland: Self-represented

Ruling

1. For the reasons set forth herein, on the Court’s own motion (Code Civ. Proc., § 436, subd. (b)), the Court strikes the demurrer of defendant McClelland for noncompliance with Code of Civil Procedure section 430.41. Hearing on the demurrer is ordered off calendar. Defendant shall file and serve her answer to the complaint on or before January 24, 2018.

2. The Case Management Conference is presently set for January 30, 2018, at 8:30 am. The Court intends to set a trial date at that time. Be prepared to participate in setting that date. You will need to think ahead as to when your case will be ready for trial. The parties are urged to obtain legal representation or legal advice in proceeding with this matter.

Analysis

The demurrer of defendant Jo-Ann McClelland was filed on December 4, 2017.

“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).)

No declaration complying with Code of Civil Procedure section 430.41. There is no exception to this requirement for self-represented litigants unless a self-represented litigant is incarcerated. (Code Civ. Proc., § 430.41, subd. (d)(1).) There is nothing before the Court showing that this exception applies.

Therefore, on the Court’s own motion (Code Civ. Proc., § 436, subd. (b)), the Court strikes the demurrer of defendant McClelland for noncompliance with section 430.41. Hearing on the demurrer is ordered off calendar.

The Court notes that this matter raises complicated procedural issues. The parties are urged to obtain legal representation or legal advice in proceeding with this matter.

 
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