Defense Hearing on Demurrer
May 13, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________
02:00 PM LINE 13 25-CIV-01197 ZCA HOMES LLC VS. FELECIA A JACKSON
ZCA HOMES LLC MARIE G. QUASHNOCK FELECIA A JACKSON THOMAS S. WROBEL
Defense Hearing on Demurrer
TENTATIVE RULING:
Defendant Felicia A. Jackson’s demurrer to plaintiff ZCA Homes LLC’s complaint is SUSTAINED without leave to amend.
A. Defendant’s Meet and Confer Did Not Comply with the Statute
Defendant’s counsel’s declaration in support of the Demurrer states that counsel met and conferred about the defects in the complaint via email. (Wrobel Decl., ¶¶ 1-3.) This does not meet the requirement of Code of Civil Procedure, section 430.41 to meet and confer, at least five days before a responsive pleading is due, in person, by telephone, or by video conference 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.
(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.
Notwithstanding this defect, the court may rule on the demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).)
B. Defendant’s Filing of an Answer Does Not Waive the Right to File a Demurrer
Defendant’s notice of demurrer, which was filed on December 29, 2025, states that it is being filed in addition to defendant’s answer. This is authorized by Code of Civil Procedure, section 472a, subdivision (a). The answer was in fact filed on February 27, 2026. Plaintiff argues that the subsequent filing of the answer waives defendant’s right to demur. Defendant responds that “Defendant submitted her Demurrer and Answer for filing at the same time. The Answer was initially rejected by the filing clerk and was later filed, when the clerk’s cause for rejection was addressed.” (Reply, at p. 5:7-9.) Defendant has offered no support for this
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May 13, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ contention, nor any explanation for the delay in filing the answer nearly two months after the filing of the demurrer.
However, because defendant’s notice of demurrer indicates an intent to file a simultaneous answer, the subsequent filing of the answer should not be viewed as waiving the right to demur.
Plaintiff also argues that defendant has waived the arguments raised on demurrer by taking contrary positions in the answer, such as by raising affirmative defenses that presuppose the existence of a contract. Such defenses may be raised in the alternative, and do not waive defendant’s right to demur.
C. Demurrer
Defendant has argued that plaintiff must file a petition for confirmation of sale under Probate Code, section 10308, subdivision (b) in the pending probate action rather than bring this civil action for specific performance. Plaintiff responds that this subdivision shows that “[t]he Legislature clearly contemplated that buyers have independent rights that survive the administrator’s failure to act.” (Opp., at p. 5:9-10.) However, plaintiff has not contended with the language of the statute which contemplates that “[i]f the personal representative fails to file the report and a petition for confirmation of the sale within 30 days after the sale, the purchaser at the sale may file the report and petition for confirmation of the sale” in the probate action. (See Prob. Code, § 10308, subd. (b).) On this basis, the demurrer is SUSTAINED without leave to amend.
Defendant also argues that a creditor’s claim must be filed and rejected in probate court for plaintiff to seek damages in civil court. Because plaintiff does not seek damages arising from a liability of the decedent, but against the estate’s administrator for post-death conduct, the requirement of a creditor’s claim does not apply, and the demurrer on this basis is OVERRULED.
If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, defendant’s counsel shall prepare a written order consistent with the court’s ruling for the court’s signature, pursuant to California Rules of Court, Rule 3.1312 and Local Rule 3.403(b)(iv), and provide written notice of the ruling to all parties who have appeared in this action. The order should be e-filed only, do not email or mail a hard copy to the court.