Defendant Lori Smith’s Demurrer to the First and Second Amended Complaint
(47) Tentative Ruling
Re: Gregory Smith vs. Nationwide Mutual Insurance Company Superior Court Case No. 25CECG02550
Hearing Date: May 27, 2026 (Dept. 403)
Motion: Defendant Lori Smith’s Demurrer to the First and Second Amended Complaint
Tentative Ruling:
To continue the hearing on this motion to Thursday, July 9, 2026 at 3:30 p.m. in Department 502. The parties are ordered to conduct a meet and confer session, in person, by telephone, or by videoconference at least 15 days prior to the hearing. If the meet and confer resolves the issues, defendant shall call the calendar clerk to take the motion off calendar. If it does not resolve the issues, defendant shall file a declaration, on or before Wednesday June 17, 2026 at 5:00 p.m., stating the efforts made. (Code Civ. Proc., § 430.41.)
Explanation:
Plaintiff, Gregory Smith (“Mr. Smith” or “Plaintiff”) asserts 18 causes of action, including 14 against Lori Smith (“Ms. Smith”) and/or her business, Visual Changes Skin Care International, Inc. (“Visual Changes”). All of these causes of action stem from Ms. Smith’s alleged misconduct with respect to property located at 4676 W. Jacquelyn Avenue Fresno, California, 93722-6405 ("Covered Property") that is co-owned by plaintiff and Ms. Smith, and purchased during their marriage. (First Amended Complaint (FAC), ¶3.)
Plaintiff further alleges in his First Amended Complaint, that “a unity of interest and ownership between LORI and VISUAL CHANGES, such that any individuality and separateness between LORI and VISUAL CHANGES have ceased to exist and VISUAL CHANGES is the alter ego of LORI in that LORI controls, dominates, manages, and operates VISUAL CHANGES to suit her own conveniences.” (FAC., ¶30.)
On January 16, 2026, both Visual Changes and Ms. Smith demurred to the fifth through fifteenth, and eighteenth causes of action to plaintiff’s First Amended Complaint because the Court lacks jurisdiction because the family court presiding over plaintiff's and Ms. Smith's marital dissolution has sole jurisdiction over the subject matter of plaintiff's claims. Visual Changes further demurs as to each of the aforementioned causes of action for various reasons.
On February 11, 2026, this Court sustained Visual Changes demurrer, while granting Mr. Smith leave to amend. Mr. Smith then filed his second amended complaint on March 16, 2026.
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Accordingly, Ms. Smith’s demurrer with respect to Mr. Smith’s first amended complaint is moot. 3
On April 15, 2026, Ms. Smith demurred to Mr. Smith’s second amended complaint.
The Court continues the hearing to Ms. Smith’s demurrer to Mr. Smith’s second amended complaint to Thursday, July 2, 2026 at 3:30 p.m. in Department 502. The parties are ordered to conduct a meet and confer session, in person, by telephone, or by videoconference at least 15 days prior to the hearing. If the meet and confer resolves the issues, defendant shall call the calendar clerk to take the motion off calendar. If it does not resolve the issues, defendant shall file a declaration, on or before Friday, April 24, 2026 at 5:00 p.m. stating the efforts made. (Code Civ. Proc., § 430.41.)
Before the merits of a demurrer are considered, the moving party must first have demonstrated that he or she fulfilled the meet and confer duties set forth in Code of Civil Procedure section 430.41. Code of Civil Procedure section 430.41 requires the party who is attacking the pleadings by way of demurrer to meet and confer in person, by telephone, or by videoconference prior to filing the motion, in order to determine if the parties can reach an agreement that would resolve the objections and avoid having to file the motion. Then, if these efforts do not result in reaching an agreement, the moving party must file a declaration, along with the moving papers, stating one 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).)
Here, the attorney for Ms. Smith, Justin O’Connell, filed a declaration regarding the efforts to meet and confer prior to filing the demurrer to the second amended complaint. The declaration detailed only one follow-up email to meet and confer with the Mr. Smith’s attorney on April 9, 2026, in addition to prior discussions pertaining to the first amended complaint. (O’Connell Decl., ¶¶ 1-6.)
The one follow-up email with respect to Ms. Smith’s demurrer to the second amended complaint is insufficient to satisfy the meet and confer requirement. Defendant must make a concerted effort to meet telephonically or face-to-face with plaintiff and discuss the legal issues and bases for demurrer during that meeting. (Code Civ. Proc., § 430.41 subd. (a)(1).) It is not a plaintiff’s burden to meet and confer with a defendant prior to this motion, and the burden cannot be shifted to him or her if the defendant’s efforts are insufficient.
“A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., § 430.41, subd. (a)(4).) The insufficiency of the attempt to meet and confer is not a reason to overrule
the demurrer, but also the failure to comply cannot then support that sustaining the demurrer is the correct decision.
The court will continue the hearing to allow the parties to meet and confer, and only if efforts are truly unsuccessful will it rule on the merits. After such good faith attempts, defendant shall file a declaration specifically detailing the efforts made.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: lmg on 5-26-26. (Judge’s initials) (Date)
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