Judge: Ashfaq G. Chowdhury, Case: 24NNCV02519, Date: 2024-12-05 Tentative Ruling

Case Number: 24NNCV02519    Hearing Date: December 5, 2024    Dept: E

Hearing Date: 12/05/2024 – 8:30am
Case No. 24NNCV02519
Trial Date: UNSET
Case Name: FARAMARZ BAGHERI; BICH-NGA BAGHERI v. TIFFANY ROSE FAIRBANKS; JENNIFER ORTEGA; AMANDA MICHAELA LEWIS; SARAH HOCHSTATTER

TENTATIVE RULING – MOTION TO DISMISS

RELIEF REQUESTED¿ 
“Defendant Tiffany Fairbanks will move the Court for an ex parte order dismissing Plaintiff Faramarz Bagheri’s action due to Plaintiff’s failure to comply with mandatory requirements under the California Code of Civil Procedure, including sections 396a(a) and 1166(a), and violations of Local Court Rule 2.3(a)(1)(C).

This motion is based on this notice, the attached Memorandum of Points and Authorities, the Declaration of Tiffany Fairbanks, the pleadings and records on file in this action, and such further evidence and argument as may be presented before or at the hearing on the motion.”

(Def. Mot. p. 1-2.)

PROVEDURAL
Moving Party:  Defendant, Tiffany Fairbanks (Defendant or Movant)

Responding Party: No Opposition by Plaintiffs

Moving Papers: Defendant’s Notice of Ex Parte Motion to Dismiss

Opposition Papers: No Opposition by Plaintiffs

Reply: Notice of Non-Opposition

Additional Reply: Supplemental Brief in Support of Defendant’s Motion to Dismiss

ANALYSIS

Service
16/21 Day Lapse (§ 1005(b)): Uncertain
Proof of Service Timely Filed (CRC, Rule 3.1300(c)): No
Correct Address (CCP § 1013, § 1013a, § 1013b): Uncertain

On eCourt, a “Hearing on Motion to Dismiss” is on calendar for 12/5/2024.

As a preliminary matter, this “Hearing on Motion to Dismiss” does not contain a CRS number (aka Res ID).

Additionally, it is not entirely clear if a motion to dismiss was ever filed by Movant.

On 11/13/2024, Defendant, Tiffany Fairbanks, filed a notice of ex parte motion to dismiss.

On 11/14/2024, this Court ruled as following:

The matter is called for hearing.

Arguments are made by both sides.

After hearing all oral argument and reviewing moving papers, the Court rules as follows:

The Ex Parte Application For an order to dismiss filed by Tiffany Rose Fairbanks on 11/13/2024 is Denied.

Hearing on Motion to Dismiss is scheduled for 12/05/24 at 08:30 AM in Department E at Glendale Courthouse.

Opposition brief to be filed by 11/21/21.

Reply brief to be filed by 11/27/24.

The Court orders the parties to meet and confer telephonically in the next 3 business days to discuss potential resolution and potential stipulations.

On the Court's own motion, the Status Conference scheduled for 11/18/2024 is advanced to this date and vacated.

Plaintiff to give notice.

(Min. Order, 11/14/2024.)

It is unclear based on the 11/14/2024 Minute Order if the notice of ex parte motion to dismiss filed on 11/13/2024 was intended to serve as the instant moving papers for the motion to dismiss on hearing for 12/5/2024.

If the ex parte filed on 11/13/2024 is serving as the motion to dismiss on calendar for 12/5/2024, the Court notes how the 11/13/2024 ex parte motion to dismiss did not contain a proof of service. Therefore, it is unclear if Movant served Plaintiffs’ counsel at the proper address, and it’s unclear if Movant complied with the timeliness requirements of CCP § 1005(b). Further, Movant did not comply with CRC, Rule 3.1300(c) which states, “Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.” (Id.) Movant here did not file a proof of service with her 11/13/2024 ex parte motion to dismiss.

Substantive Analysis
Further, if the ex parte filed on 11/13/2024 is serving as the motion to dismiss on calendar for 12/5/2024, the Court DENIES Defendant’s motion to dismiss for the reasons explained below.

As a preliminary matter, Defendant’s motion is not the model of clarity and at times is indecipherable.

Movant cites to CCP § 396a(a) which states:

In a case that is subject to Sections 1812.10 and 2984.4 of the Civil Code, or subdivision (b) of Section 395 of the Code of Civil Procedure, or in an action or proceeding for an unlawful detainer as defined in Section 1161 of the Code of Civil Procedure:

(a) The plaintiff shall state facts in the complaint, verified by the plaintiff’s oath, or the oath of the plaintiff’s attorney, or in an affidavit of the plaintiff or of the plaintiff’s attorney filed with the complaint, showing that the action has been commenced in the proper superior court and the proper court location for the trial of the action or proceeding, and showing that the action is subject to the provisions of Sections 1812.10 and 2984.4 of the Civil Code or subdivision (b) of Section 395 of the Code of Civil Procedure, or is an action for an unlawful detainer. When the affidavit is filed with the complaint, a copy thereof shall be served with the summons. Except as provided in this section, if the complaint or affidavit is not filed pursuant to this subdivision, no further proceedings may occur in the action or proceeding, except to dismiss the action or proceeding without prejudice. However, the court may, on terms that are just, permit the affidavit to be filed after the filing of the complaint, and a copy of the affidavit shall be served on the defendant and the time to answer or otherwise plead shall date from that service.

(CCP § 396a(a).)

Movant points the Court to 396a(a) because of the portion that states, “…showing that the action has been commenced in the proper superior court and the proper court location for the trial of the action or proceeding,…” Movant then argues that Plaintiff did not file the required statement of facts or affidavit showing that the action was commenced in the proper court.

Here, Movant’s argument is unavailing. In the Civil Case Cover Sheet Addendum (filed on eCourt on 6/26/2024) which was served on Plaintiff as indicated in the proof of service of summons (filed on eCourt on 10/7/2024), Plaintiff’s counsel signed the Certification of Assignment that stated, “ I certify that this case is properly filed in the Northeast District of the Superior Court of California, County of Los Angeles [Code of Civ. Proc., 392 et seq., and LASC Local Rule 2.3(a)(1)(E)].”

Therefore, Plaintiff did file the required statement of facts.

Local Rule 2.3(a)(1)(C)
Defendant’s next argument is that under Local Rule 2.31(a)(1)(C) the Pasadena Courthouse, where this case was initially filed, was the wrong courthouse to file this action.

Defendant admits that this rule was revised.

Defendant quotes a portion of this local rule that states, “An unlimited civil action may not be filed in the Northeast District.”

In Exhibit 1, Defendant attaches a copy of this rule that has allegedly now been revised.

Defendant’s argument appears to be that the Pasadena Courthouse is in the Northeast District, and since an unlimited civil action cannot be filed in the Northeast District, the Pasadena Courthouse was the wrong location.

The Court does not find Defendant’s argument persuasive as the argument appears to be moot.

The instant matter is now in the Glendale Courthouse. According to Defendant’s Exhibit 1, the Glendale Courthouse is in the North Central District, not the Northeast District.  

Other
As to the other arguments that Defendant asserted in her motion/ex parte filed on 11/13/2024, the Court does not find those arguments availing as they are either not on point or indecipherable.

On 11/25/2024, Defendant filed a Notice of Non-Opposition. This notice mentions that Plaintiff did not file an opposition brief by November 21, 2024.

While the Court notes that the notice of non-opposition is accurate in pointing out that Plaintiff did not file an opposition, Defendant’s Notice of Non-Opposition is otherwise unhelpful. The Notice of Non-Opposition attacks several issues not before the Court on Defendant’s motion to dismiss.

Defendant’s notice of non-opposition also states, “Due to Plaintiff’s failure to submit an opposition brief by the Court-ordered deadline of November 21, 2024, Defendant intends to file a supplemental brief in support of the Motion to Dismiss, in lieu of the reply brief initially ordered by the Court to be submitted by November 27, 2024. This supplemental brief will address the new grounds for dismissal arising from Plaintiff’s submission of improperly labeled "joint" trial documents.” (Def. Not. Non-Oppo. p. 3.)

As to the supplemental brief filed by Defendant on 11/27/2024, the Court does not find the supplemental brief availing.

The supplemental brief attacks issues not before this Court on the motion to dismiss.

In the supplemental brief, Defendant attacks alleged issues in the trial documents filed by Plaintiff.

Plaintiff’s trial documents are not at issue in Defendant’s motion to dismiss.

TENTATIVE RULING
Defendant’s motion to dismiss is DENIED.