A motion to dismiss is the legal equivalent of a general demurrer. Citizens for Parental Rights v. San Mateo County Bd. of Educ. (1975) 51 Cal.App.3d 1, 34.
A demurrer (or motion to dismiss) is limited to matters appearing on the face of the challenged pleading or matters which must or may be judicially noticed. Blank v. Kirwan (1985) 39 Cal.3d 311, 318.
The sole question on a motion to dismiss is whether or not a cause of action has been stated. Citizens at 7, fn. 4.
The Code of Civil Procedure, section 581 provides that:
(More provisions can be found in CCP § 581.)
A court may dismiss an action, with or without prejudice, upon plaintiff’s written request to the clerk at any time before commencement of trial. CCP § 581(b)(1). Generally, the plaintiff has an absolute right to dismiss a lawsuit, neither the clerk nor the trial court has any discretion in the matter, and voluntary dismissal terminates the trial court's jurisdiction over the matter. O'Dell v. Freightliner Corp., 10 Cal.App.4th 645, 659 (1992). Dismissal is effective upon tender of the request and all subsequent proceedings are void. Aetna Cas. & Sur. Co. v. Humboldt Loaders, Inc., 202 Cal.App.3d 921, 931 (1988).
The court has discretion to dismiss an action for failure to prosecute. Code of Civil Procedure Section 583.410, subdivision (a), provides:
The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.
The California Rules of Court list the factors to be considered in determining whether to dismiss an action that has not been brought to trial within two years after the action was commenced. They include the extent to which the parties engaged in any settlement negotiations or discussions, the diligence of the parties in pursuing discovery, the nature and complexity of the case, the law applicable to the case, the nature of any extensions of time or other delay attributable to either party, the condition of the court’s calendar and the availability of an earlier trial date, and whether the interests of justice are best served by a dismissal of the case. Cal. Rules of Court, Rule 3.1342, subd. (e). “[W]hen there is an entire absence of any showing of good cause for delay,” an action may properly be dismissed. City of Los Angeles v. Gleneagle Development Company (1976) 62 Cal.App.3d 543, 561.
The Code of Civil Procedure, 583.420(a) sets out the other grounds of court removal:
The court also has inherent authority to dismiss an action (recognized in the Code of Civil Procedure § 583.150). Exercise of this power has generally been confined to “sham” actions, or cases involving prejudicial delay in prosecution for less than the statutory periods. Two significant factors in exercising this discretionary power are: (a) whether the plaintiff's conduct was “severe and deliberate”; and (b) whether alternatives less severe than dismissal are available to remedy the situation. “[S]ound exercise of discretion requires the judge to consider and use lesser sanctions unless the court's authority cannot possibly be otherwise vindicated.” Lyons v. Wickhorst, (1986) 42 Cal.3d 911, 917.
[TENTATIVE] ORDER RE: MOTION TO DISMISS On December 10, 2018, plaintiff Ronald Auld (“Plaintiff”) filed this action against defendant Valley Presbyterian Hospital (“Defendant”). Defendant was served via substitute service on January 14, 20...
...never served Defendant with the SAC and that Defendant only learned of the SAC by looking at the case index. Plaintiff filed a very late opposition pointing out that Defendant did not file this motion to dismiss until seven months after the hearing on its demurrer. Where a demurrer has been sustained with leave to amend, but no amendment has been made within the time allowed by the court, the court may dismi...
Feb 21, 2020
...RULING ON MOTION TO DISMISS Respondent has filed a motion to dismiss this case for failure to prosecute pursuant to Code of Civil Procedure section 583.360. Petitioner was served with a copy of the motion but has not filed an opposition thereto. The Court’s tentative ruling is to grant the motion. Code of Civil Procedure section 583.310 provides an action must be brought to trial within five yea...
...five years “shall be dismissed by the court on its own motion.” (Code Civ. Proc. § 583.360, subd. (a), emphasis added.) “[U]nless some specified exception applies, a trial court has a mandatory duty to dismiss an action and a defendant has an absolute right to obtain an order of dismissal, once five years has elapsed from the date the action was commenced.” (M&R Properties v. Thomson (1992) 11 Cal.App.4th 8...
Feb 21, 2020
... Motion on Calendar On May 18, 2018, Wells Fargo filed a motion for an order compelling arbitration and staying the civil court proceedings. Plaintiff opposed. On June 22, 2018, the Court granted the motion to compel arbitration and stayed the proceedings. On December 20, 2019, Wells Fargo filed this Petition to Confirm Arbitration Order. The Court is not in receipt of an opposition brief to the petiti...
...preparing its defense, while Plaintiff failed to propound discovery, discuss settlement, produce discovery, or pay arbitrator fees. (Rackers Decl., ¶¶4-6.) On October 11, 2019, Wells Fargo filed a motion to dismiss Plaintiff’s claims with prejudice, which the arbitrator granted. (Id., ¶¶7, 9, Exs. B, D.) Exhibit D includes the Findings and Order for Termination of Arbitration, which was issued on December 6, 20...
Feb 21, 2020
... Motion Procedures: The law and motion calendar in Courtroom 20 before Judge Matthew P. Guasco starts promptly at 8:30 a.m. Ex parte applications will be heard at the same time as matters on the law and motion calendar. Parties appearing by Court Call must check in with the Judicial Assistant by 8:20 a.m. No notice of intent to appear is required. Parties wishing to submit on the tentative decision must so ...
..._________________________________________________________________ The following is the Court's tentative decision concerning the motion of plaintiff intervenor, City of Santa Paula ("City") to dismiss this False Claims Act Action: The Court GRANTS City's motion to dismiss this qui tam False Claims Act Action. The Court declines to consider the late opposition/objection filed by Ricardo P. Perez. The Court finds City has demonstrated sufficient good cause by competent e...
Feb 20, 2020
The Court rules as follows on the motion of Petitioners/Defendants Hughes & Hughes, LLP and Lisa Bergman Hughes for an order confirming arbitration award – Specifically, petitioners seek an order confirming the arbitration award issued in th...
...arbitration before JAMS or Judicate West and stay the court action pending resolution of the arbitration; and (2) denied plaintiff’s motion for an order staying the entire action, including the hearing on the motion to compel arbitration, pending resolution of the dissolution proceeding without prejudice for the plaintiff to seek a stay from the arbitrator. On 5/10/18, the Court noted that plaintiff’s counsel rep...
Feb 19, 2020
...February 19, 2020 NOTICE: OK[1] RE: Kent v. Garvey, et al. (KC070386) ______________________________________________________________________________ Defendants Kathleen Garvey’s and Michael Garvey’s MOTION FOR TRIAL PREFERENCE Responding Party: Plaintiff, Kevin Kent Tentative Ruling See below. Background Plaintiff Kevin Kent (“Plaintiff”) alleges that he has a 25% ownership interest in Leviathan I...
...benefit while allowing the properties to be foreclosed upon. Plaintiff alleges that The Garveys have terminated bonus or dividend payments and profit sharing to Plaintiff. On May 7, 2019, “Judgment of Dismissal with Prejudice After Sustaining of Demurrer to Second Amended Complaint without Leave to Amend” was filed as to Leviathan. On August 22, 2019, an “Order Sustaining Demurrer of Defendant Jameson, In...
Feb 19, 2020
Gloria White-Brown
...FCA US, LLC, a Delaware Corporation MOVING PARTY: Defendants, FCA US, LLC, Premier Automotive of Placentia, LLC OPPOSING PARTY: Plaintiff Carla Vital TRIAL DATE: March 16, 2021 PROOF OF SERVICE: OK MOTION: Defendant’s Demurrer to the First Amended Complaint; Defendant’s Motion to Strike Punitive Damages from the First Amended Complaint OPPOSITION: February 4, 2020 REPLY: February 10, 2020 TENTATIVE:...
...fourth, fifth and sixth causes of action is sustained. Defendants are to provide notice. Plaintiff is given 30 days leave to amend from this date. Having sustained the demurrer in its entirety, Defendants’ motion to strike is moot. BACKGROUND This is a breach of warranty action concerning a 2014 Jeep Cherokee (the “Subject Vehicle”) that Defendant FCA US LLC (“FCA”) allegedly manufactured and that Carla Vita...
Feb 19, 2020
...501) Motion: Motion to Dismiss Tentative Ruling: To grant and dismiss the complaint with prejudice. Defendant shall submit to this court, within seven days of service of the minute order, a proposed judgment dismissing the action. (Code Civ. Proc., § 438.) Explanation: On 8/21/19 Fresno Imaging filed a motion for judgment on the pleadings, which motion was granted on 10/23/19. Plaintiff was granted 10 days’ leave...
...the deadline to amend was 11/7/19. To date plaintiff has not filed an amended complaint. Defendant filed a motion to dismiss on 11/15/19. At various times (including after the filing of the motion to dismiss) plaintiff has filed additional documents, mostly medical records, and other documents possibly indicating efforts to serve defendant, but nothing that could be construed as a pleading or complaint. C...
Feb 18, 2020
...No.: 19STCV08973 Motion: Motion to Dismiss Moving Party: Defendant Kevin Chambers Responding Party: Unopposed Tentative Ruling: The Motion to Dismiss is denied. Defendant Kevin Chambers seeks to dismiss this action. Chambers contends that Plaintiff is a vexatious litigant who has harasses Plaintiff regularly. Defendant also contends that Plaintiff has abused the discovery process. As an initial matt...
...by Plaintiff and the actions described above are not a valid basis to grant a “motion to dismiss.” There are, however, other appropriate actions that Defendant can take in this matter. The Motion to Dismiss is denied.
Feb 18, 2020
Gladys Ochoa, et al. v. Touch-Tel USA, LLC, et al. MOTION TO DISMISS MOVING PARTY: Defendant Amanul Syed RESPONDING PARTY(S): No opposition on eCourt as of February 10, 2020. STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: Plaintiffs allege that Defendants Veritas ...
...Syed moves to dismiss this lawsuit, although it appears that the motion was intended to be brought on behalf of Defendants Touch-Tel USA, LLC and Veritas Prepaid Phone Co. LLC. To the extent that this motion was brought on behalf of Defendant Touch-Tel USA, LLC, this Defendant had not yet appeared in the action. Given that the motion appears to argue that the Court lacks personal jurisdiction, the Court w...
Feb 14, 2020
Defendants Ramsey’s and Pintar’s Motion for Dismissal and Recovery of Fees and Costs. On October 31, 2017 plaintiff filed an action against Monica Kohs, Kelly Ramsey, Elizabeth Pintar, and the Tahoe Regional Planning Agency (TRPA) related to the same s...
...corrected.” (Code of Civil Procedure, § 128.7(c).) Plaintiff argues that the Section 128.7 motion is procedurally improper, because it seeks to sanction plaintiff and also dismiss the action and, therefore, the motion is not made separately from other motions or requests. (See Plaintiff’s Opposition, page 17, lines 10-15.) As stated later in this ruling, a Section 128.7 motion can result in terminating sanctions, w...
Feb 14, 2020
Defendant Kerstyn Gaither’s unopposed motion to dismiss is GRANTED. An action must be brought to trial within 5 years after it is commenced. (Code Civ. Proc., § 583.310.) If no hearing is requested, this tentative ruling is effective immediately. No formal...
Feb 14, 2020
Assigned Judge
Defendant Kerstyn Gaither’s unopposed motion to dismiss is GRANTED. An action must be brought to trial within 5 years after it is commenced. (Code Civ. Proc., § 583.310.) If no hearing is requested, this tentative ruling is effective immediately. No formal...
Feb 14, 2020
Case management conference and hearing on motion to dismiss off-calendar. Matter dismissed without prejudice 1/31/2020.
Feb 14, 2020
Jiang v. Xu, et al. MOTION FOR RECONSIDERATION (CCP § 1008) TENTATIVE RULING: Plaintiff Yvonne Jiang’s Motion for Reconsideration of Order Granting Dismissal of Xu and of Judgment for Helen Xu is DENIED. ANALYSIS: Plaintiff Yvonne Jiang (“Plaintiff”) filed a Complaint for (1) breach of contract, (2) fraud, and (3) fraud against Defendants Helen Xu (“Xu...
...the Court granted Defendant Xu’s motion for attorney’s fees. On June 20, 2019, Plaintiff filed the instant Motion for Reconsideration of Order Granting Dismissal of Xu and Judgment for Helen Xu (“the Motion”). Plaintiff also filed an appeal of the November 5, 2018 and July 11, 2019 order on August 26, 2019. On October 28, 2019, the Appellate Division issued an order granting Defendant Xu’s motion to dis...
Feb 13, 2020
Jiang v. Xu, et al. MOTION FOR RECONSIDERATION (CCP § 1008) TENTATIVE RULING: Plaintiff Yvonne Jiang’s Motion for Reconsideration of Order Granting Dismissal of Xu and of Judgment for Helen Xu is DENIED. ANALYSIS: Plaintiff Yvonne Jiang (“Plaintiff”) filed a Complaint for (1) breach of contract, (2) fraud, and (3) fraud against Defendants Helen Xu (“Xu...
...the Court granted Defendant Xu’s motion for attorney’s fees. On June 20, 2019, Plaintiff filed the instant Motion for Reconsideration of Order Granting Dismissal of Xu and Judgment for Helen Xu (“the Motion”). Plaintiff also filed an appeal of the November 5, 2018 and July 11, 2019 order on August 26, 2019. On October 28, 2019, the Appellate Division issued an order granting Defendant Xu’s motion to dis...
Feb 13, 2020
Defendants Lomas Serenas Property Owners Association, Anthony Ditty, and Thomas Demere's Motion to Join Indispensable Party, or, in the alternative, Motion to Dismiss for Failure to Join Indispensable Party is GRANTED in part, and DENIED in part. Over Defendants' objection, the court has considered Plaintiff's Opposition and concurrent filings. However, the court ...
...Plaintiff is granted leave to file a Second Amended Complaint naming Mrs. Varga as a plaintiff and must file and serve the Second Amended Complaint within 30 days of the date of this Order. The Motion to Dismiss for Failure to Join Indispensable Party is denied, contingent on Plaintiff filing and serving the Second Amended Complaint on Defendants within 30 days of the date of this Order.
Feb 13, 2020
Motion to Dismiss Having considered the moving and opposing papers, the Court rules as follows. No reply was filed. BACKGROUND On August 17, 2018, Plaintiff Omar Sarabia (“Plaintiff”) filed a complaint against Defen...
...Hanna filed a cross-complaint against Defendant/Cross-Defendant Gilbert Maldonado seeking indemnity and apportionment. On January 7, 2020, Defendant/Cross-Defendant Gilbert Maldonado filed a motion to dismiss Defendant/Cross-Complainant Nabil Hanna Aziz Hanna’s cross-complaint pursuant to California Code of Civil Procedure section 581, subdivision (m). Trial is set for June 23, 2020. PARTY’S REQUEST Def...
Feb 10, 2020
...OF LOS ANGELES - CENTRAL DISTRICT ROXBOROUGH, POMERANCE, NYE & ANDREANI, LLP, Plaintiff, vs. BLUE OAK MEDICAL GROUP, etc., et al., Defendants. CASE NO.: 19STCV35320 [TENTATIVE] ORDER RE: MOTION TO DISMISS COMPLAINT Date: February 10, 2020 Time: 8:30 a.m. Dept. 56 MOVING PARTY: Defendant Edwin Mirzabeigi (“Moving Defendant”) RESPONDING PARTY: Plaintiff Roxborough, Pomerance, Nye & Andreani, LLP Th...
...agreement pertaining to legal services. Plaintiff filed a complaint against Defendants alleging causes of action for: (1) breach of contract; and (2) common counts. Moving Defendant filed a motion to dismiss Plaintiff’s complaint on the grounds that Plaintiff failed to comply with the Mandatory Fee Arbitration Act (“MFAA”) articulated in California Business and Professions Code, Section 6200 et seq. Movin...
Feb 10, 2020
Defendant Gavin Mehl’s motion to dismiss action on ground of inconvenient forum: Defendant’s request for judicial notice is GRANTED IN PART. (Evid. Code, §§ 451, 452.) The Court declines to take judicial notice of “Previous Judicial Notice t...
...Code, §§ 451, 452.) Defendant’s motion to dismiss action on ground of inconvenient forum is DENIED. (Code of Civ. Proc., § 410.30.) Code of Civil Procedure section 418.10 does not apply to a motion to dismiss the action by a defendant who has made a general appearance. (Code of Civ. Proc., § 410.30, subd. (b).) Further, defendant fails to establish that in the interest of substantial justice this action sh...
Feb 10, 2020
Judge Daniel P. Maguire
Defendant Zhen Lian McWilliams’ unopposed Motion to Dismiss is continued to March 16, 2020. No proof of service has been filed, and, thus, it is unclear if plaintiff received the proper notice of this motion. Defendant is permitted to file supplemental documents at least 16 days prior to the continued hearing to correct this deficiency. Defendant is ordered to give notice.
Feb 10, 2020
David HOFFER
SPECIAL SET HEARING ON: WRIT HEARING SET BY COURT * TENTATIVE RULING: * For the reasons discussed below, Petitioner Peter J. Nowicki’s Amended Motion requesting this court to issue a Writ of Mandamus pursuant to Code of Civil Procedure § 1085 is denied. Petitioner has not met his burden of establishing the decision of the CCCERA Board of Retiremen...
...caused him prejudice. CCCERA points out that Petitioner is attempting to re-litigate the same due process allegations raised in federal court, which he lost. The federal court sustained CCCERA’s motion to dismiss, with leave to amend. (Nowicki v. Contra Costa Cty. Employees' Ret. Ass'n (N.D.Cal. June 27, 2017, No. 17-cv-00629-SI) 2017 U.S.Dist.LEXIS 99485, *18-19, *22, *25.) Nowicki failed to amend the compla...
Feb 10, 2020
Burch
victor anthony menjivar, Plaintiff, vs. esteben m. gomez, m.d., Defendant. Case No.: 19STCV26427 Hearing Date: February 7, 2020 [TENTATIVE] order RE: motion to dismiss NOTICE The Court posts this tentative on February 5, 2020 at approximately 9:20 a.m. If Plaintiff does not appear at the hearing, he shall waive the right to be heard and shall submit to this tentat...
...Plaintiff asserts no facts or causes of action. Therefore, Defendant moves to dismiss this action. Defendant cites California Rules of Court, rule 3.1320, subdivision (h), which provides, “A motion to dismiss the entire action and for entry of judgment after expiration of the time to amend following the sustaining of a demurrer may be made by ex parte application to the court under Code of Civil Procedure ...
Feb 7, 2020
...Defendant. The FAC dropped any reference to the October 28, 2016 accident and instead alleged injuries arising from an October 28, 2015 car accident on the 210 freeway east of Citrus Avenue. Plaintiff dismissed Garcia on April 8, 2019. Plaintiff served Defendant on November 21, 2019. Trial is set for July 15, 2020. Defendant demurs to the FAC on the grounds that the action is barred by the statute of limi...
...has failed to prosecute, and dismissal is appropriate under Code of Civil Procedure section 583.410, subdivision (a) and section 583.420, subdivision (a)(1), which permit a court “in its discretion” to “dismiss an action for delay in prosecution” when service is not made within two years. “The unexcused failure to serve a summons within the two-year period prima facie constitutes a sufficient ground for dism...
Feb 7, 2020
Defendant Moss Point PCH, LLC’s motion to dismiss for failure to prosecute/an OSC re failure to retain counsel and prosecute. No opposition. Motion denied. First, Moss Point has failed to demonstrate proper service of the moving papers on plaintiff A...
... motion fails on the merits. Moss Point has brought this motion pursuant to Code of Civil Procedure section 583.410, subdivision (a), which provides, in relevant part: “The court may in its discretion dismiss an action for delay in prosecution pursuant to this article ... if to do so appears to the court appropriate under the circumstances of the case.” (Italics added.) Discretionary dismissals under secti...
Feb 7, 2020
