Judge Christopher K. Lui, Case Number: 21STCV40022, Date: 2023-08-10 Tentative Ruling

Judge: Christopher K. Lui, Case: 21STCV40022, Date: 2023-08-10 Tentative Ruling

Case Number: 21STCV40022 Hearing Date: August 10, 2023 Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter. As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

Plaintiffs allege that Defendants have diverted the resources and opportunities of nominal Defendant Infinity Health, LLC, of which Plaintiff and Defendant Avery Williams are each 50% members and co-managers.

Defendants Avery M. Williams moves to dismiss the twelfth cause of action from the Fourth Amended Complaint.

TENTATIVE RULING

Defendant Avery M. Williams’ motion to dismiss is DENIED without prejudice to filing a demurrer or motion for judgment on the pleadings after having complied with the meet and confer requirement set forth in Civ. Proc. Code, § 430.41 or § 439.

ANALYSIS

Motion To Dismiss

Defendant Avery M. Williams moves to dismiss the twelfth cause of action from the Fourth Amended Complaint on the ground that it fails to state a cognizable action. Defendant argues that this is a nonstatutory motion to dismiss pursuant to the inherent power of courts to dismiss any portion of a complaint that fails to state a cause of action. Defendant cites Barragan v. Banco BCH (1987) 188 Cal.App.3d 283, 299 for the proposition that a motion to dismiss may be filed in lieu of a demurrer and is treated as a demurrer. The citation to Barragan does not support such a proposition of law. Rather, the Barragan court was citing case law which held that a motion to dismiss filed in federal court but not ruled on before the case was remanded would be consider a responsive pleading which precluded entry of default in state court.

Defendant is attempting to file a demurrer without having first complied with the meet and confer requirement set forth in Civ. Proc. Code, § 430.41 (or motion for judgment on the pleadings with complying with the meet and confer requirement set forth in § 439).

The twelfth cause of action for indemnity was not contained in the 3AC, so Civ. Code § 430.41(b) does not preclude Defendant from demurring thereto.

As such, Defendant’s motion to dismiss is DENIED without prejudice to filing a demurrer or motion for judgment on the pleadings after having complied with the meet and confer requirement set forth in Civ. Proc. Code, § 430.41 or § 439.