Judge: Cherol J. Nellon, Case: 20STCV3217, Date: 2023-10-31 Tentative Ruling

Case Number: 20STCV3217    Hearing Date: October 31, 2023    Dept: 14

(1)        OSC re: Dismissal

            Plaintiff Terra Ocean now moves this court to issue an Order to Show Cause re: Dismissal of this entire action.

Decision

            The ex parte is DENIED.

Discussion

            Plaintiff Terra Ocean represents that its interest in the lease has been transferred to Cross-Defendant CB 1733. Therefore, it no longer has standing to pursue its case, and believes that no case can be pursued against it. Plaintiff Terra Ocean also believes that no case can be pursed against Cross-Defendant CB 1733.

            Plaintiff Terra Ocean is the master of its complaint. It may dismiss that complaint at any time. Likewise, Plaintiff Terra Ocean may move to dismiss the cross-complaint against it; in fact, it may not need to do so, as the papers filed by the Landlord indicate that the Landlord may be willing to dismiss Terra Ocean from the Cross-Complaint.

            However, Terra Ocean may not make a motion to dismiss on behalf of another party. If Cross-Defendant CB 1733 believes the case should be dismissed, it can file its own paperwork and make its own motions.

Conclusion

            Plaintiff Terra Ocean may dismiss its complaint without the involvement of the court. If the Landlord refuses to dismiss the Cross-Complaint against Terra Ocean, then Terra Ocean may file a noticed motion. Finally, Terra Ocean may not represent Cross-Defendant CB 1733. Therefore, the ex parte is DENIED pursuant to California Rules of Court Rule 3.1202(c).

(2)        Leave to Amend

            Cross-Complainant Landlord now moves this court for orders (1) granting leave to amend the Cross-Complaint to add Cross-Defendant CB 1733 in lieu of ROE 1 (2) continuing the hearings on the Motions for Summary Judgment.

Decision

            The request for leave to amend is DENIED as MOOT.

            The request to re-set the Motions for Summary Judgment is DENIED.

            The trial date, final status conference date, and reserved date for a Motion for Leave to Amend are all VACATED. The court sets a Trial Setting Conference on December 11, 2023, at 8:30 am.

Discussion

            Cross-Complainant Landlord does not need leave of court to substitute Cross-Defendant CB 1733 in lieu of ROE 1. That substitution was effectuated on October 24, 2023, by the filing of the “Amendment to Cross-Complaint” form. If Cross-Defendant CB 1733 believes that this amendment does not comport with Code of Civil Procedure § 474, it may bring the appropriate motion or pleading. But as of this moment, Cross-Defendant CB 1733 is already a named Cross-Defendant in this case. No further action (other than the issuance of summons) is required from this court.

            The Motions for Summary Judgment may not be continued because they have already been taken off-calendar by the parties. There are no pending motions of that nature before this court. Should counsel wish to make such a motion, they must reserve their date and file their papers in the manner required by the Code of Civil Procedure and Rules of Court.

            The departure of Terra Ocean, and the entrance of CB 1733, sufficiently disturb the posture of this case as to require a continuance of the trial. See California Rules of Court Rule 3.1332(c)(5)&(7). Cross-Defendant CB 1733 has counsel, who has offered oral argument before this court, but it is undisputed that CB 1733 has yet to be properly and formally served. Even should they be served tomorrow (November 1), their answer would not be due until November 30, 2023, three days after the Final Status Conference and a mere 11 days before trial.

            Maintaining the current trial date would be both unfair and unworkable. Cross-Defendant CB 1733 should have a chance to receive proper service, take stock of the case, meet and confer with opposing counsel, and evaluate what kind of time they might need to get ready. Since the parties were already coming in on December 11, 2023, that would be an appropriate return date.

Conclusion

            The request for leave to amend is MOOT. The request to re-set the Motions for Summary Judgment is DENIED, as there are no such motions on the court’s calendar. However, because there is a manifest need for a different trial date, and because Cross-Defendant CB 1733 will need to be served and evaluate the case, the pending trial date, final status conference date, and reserved date for a Motion for Leave to Amend are all VACATED. The court sets a Trial Setting Conference on December 11, 2023, at 8:30 am.