Judge: Gary I. Micon, Case: 21CHCV00215, Date: 2024-10-09 Tentative Ruling

Case Number: 21CHCV00215    Hearing Date: October 9, 2024    Dept: F43

MOTION TO DISMISS THE CROSS-COMPLAINT

MOVING PARTY: Plaintiffs Ryan Canning and Patricia Bogarin

RESPONDING PARTY: No response has been filed.

RELIEF REQUESTED

Plaintiffs have requested that the Court dismiss Cross-Complainant’s Cross-Complaint for failure to prosecute.

RULING: Motion to dismiss is denied without prejudice.

SUMMARY OF ACTION

On July 2, 2024, Plaintiffs Ryan Canning and Patricia Bogarin (Plaintiffs) filed a motion to dismiss Defendant and Cross-Complainant Shawn Kerwin’s (Kerwin) cross-complaint for failure to prosecute. The only argument in Plaintiffs’ motion is that the cross-complaint should be dismissed because Kerwin filed for bankruptcy in the Eastern District of California on or about November 2023, and this action was stayed as result. Plaintiffs provided no authority that would allow them to dismiss Kerwin’s case for failure to prosecute in such an instance.

The Court will also note that on May 22, 2024, this Court found that Kerwin’s bankruptcy had been discharged and the stay on the case was lifted. A case management conference was scheduled for November 5, 2024. Additionally, in his status report filed prior to that hearing, Kerwin indicated that he wishes to proceed on his cross-complaint against Plaintiffs. Plaintiffs’ July 2 motion makes no mention of this.

On July 10, 2024, Plaintiffs filed an amended motion to dismiss. In that motion, Plaintiffs indicated that at the hearing on May 22, this Court requested Plaintiffs’ counsel to address the issues of preemption and standing by the bankruptcy court in a written noticed motion. In this motion, Plaintiffs also cite several cases indicating that the cross-complaint should be dismissed because the bankruptcy trustee had taken control of the case, but none of these cases cited by Plaintiffs are binding upon this Court.

It appears, perhaps, that Plaintiffs are attempting to argue that Kerwin no longer has standing in this case and that his standing now belongs to the bankruptcy trustee. However, that is not clear from their motion, nor have they supported their motion with any binding authority. Plaintiffs have also not addressed what effect, if any, the discharge of Kerwin’s bankruptcy has on his ability to proceed.

Accordingly, the Court denies the motion to dismiss without prejudice.

CONCLUSION

The motion to dismiss is denied without prejudice.

Moving party to give notice.