Judge: Daniel M. Crowley, Case: 21STCV00998, Date: 2023-03-10 Tentative Ruling

Case Number: 21STCV00998    Hearing Date: March 10, 2023    Dept: 28

Defendant Home Depot U.S.A., Inc.’s Motion to Dismiss

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On January 11, 2021, Plaintiff Julian Chavez (“Plaintiff”) filed this action against Defendants Home Depot U.S.A., Inc. (“HD”), Moshe Amar (“Amar”), MC Construction and Design, Inc. (“MC”) and Allan Daniel Chanchilla Acosta (“Acosta”) for premises liability, negligence and statutory liability.

On June 1, 2021, Plaintiff filed the FAC.

On July 6, 2021, HD filed an answer. On July 29, 2021, Amar and Acosta filed an answer.

On February 15, 2023, HD filed a Motion to Dismiss to be heard on March 10, 2023. On February 27, 2023, Plaintiff filed an opposition. On March 3, 2023, HD filed a reply.

The trial date currently set for May 5, 2023.

PARTY’S REQUEST

HD requests the Court dismiss the action against HD, with prejudice, and issue monetary sanctions totaling $36,142.71.

Plaintiff requests the Court deny the motion.

LEGAL STANDARD

CCP § 128.7 provides the Court may determine if the demand and allegations were formed after an inquiry reasonable under the circumstances, and if Plaintiff’s complaint had allegations and other factual contentions. Should the Court find that counsel violated this, sanctions may be imposed, including striking or dismissing the pleadings.

DISCUSSION

HD’s request is effectively a Motion for Summary Judgment or Judgment on the Pleadings that has been improperly filed as a Motion to Dismiss; the crux of the argument is based upon a Plaintiff’s counsel’s alleged lack of evidence to support the claims stated in the FAC. HD cites to depositions from witnesses that indicate they do not know why Plaintiff was on HD’s premises that day, which is allegedly required to support Plaintiff’s claims. The deadline to file and serve a MSJ has passed, with this being filed after the 105-day deadline, and this does not use the proper framework otherwise. The Court will not rely upon CCP §128.7 to dismiss an action, with prejudice, and award over $30,000.00 in sanctions. Additionally, Plaintiff has an upcoming Motion for Leave to file the SAC, which is set to be heard next month. HD alleges that this fails to correct the issues; should the Court grant the motion, HD is free to demurrer accordingly to the SAC.

The Court finds the instant motion to be baseless.  The Court wishes to hear the basis for Plaintiff’s request for sanctions.