Judge: Joel R Wohlfeil, Case: 37-2020-00015282-CU-BC-CTL, Date: 2024-03-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 18, 2024

03/22/2024  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2020-00015282-CU-BC-CTL MARDIROSSIAN & ASSOCIATES INC VS PRUCHNIK [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Judgment on the Pleadings, 02/22/2024

The Motion (ROA # 307) of Defendant ROBERT PRUCHNIK ('Defendant') for judgment on the pleadings of the entire Complaint by MARDIROSSIAN & ASSOCIATES, INC. ('Plaintiff'), is DENIED.

Defendant's Request (ROA # 309) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of nos. 1, 2, 3, 4 and 6 and the date only on which no. 5 was filed with the Court; otherwise, the Request is DENIED.

Plaintiff's Request (ROA # 325) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of nos. 6, 8, 9, 13 - 15, 18 - 20 and the dates only on which nos. 1 - 5, 7, 10 - 12, 16, 17 and 21 were filed with the Court; otherwise, the Request is DENIED.

Defendant's Request (ROA # 330) for judicial notice is GRANTED.

This Motion is untimely. As stated within the Notice, this Motion is made pursuant to Code of Civil Procedure section 438.

Section (e) of this section provides: 'No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.' 'The statutory reference to a 'pretrial conference order' should be interpreted to mean the 'case management order' (CRC 3.728; see ¶ 12:84). Therefore, in most cases, the operative deadline will be 30 days before the initial trial date.' Edmon and Karnow, Cal. Prac. Guide: Civ. Pro. Before Trial, supra at ¶ 7:280.

The 'Practice Pointer' that follows provides the following advice: 'If there are grounds for a motion for judgment on the pleadings, make your motion as early as possible. Trial judges are often reluctant to grant last minute challenges to the pleadings because they disrupt the court's trial calendar and may result in unnecessary trial preparation expenses for both sides.' Id. at ¶ 7:287.

The transferred and consolidated Los Angeles action was filed on July 3, 2019. The San Diego action was filed on May 26, 2020, and personal service was completed two days later. The Complaints have not been amended.

On August 11, 2022, this action was stayed by this Court. ROA # 195, 198.

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3090312 CASE NUMBER: CASE TITLE:  MARDIROSSIAN & ASSOCIATES INC VS PRUCHNIK [IMAGED]  37-2020-00015282-CU-BC-CTL On March 10, 2023, this stay was lifted and the initial trial date was set for December 1, 2023. ROA # 205.

On May 24, 2003, Defendant filed a notice of stay of proceedings due to a demand to arbitrate the attorney fee dispute. ROA # 206. This stay as vacated on July 28, 2023. ROA # 272, 274.

On August 21, 2023, this action was once again stayed due to a pending appeal. ROA # 289. This appeal was dismissed on September 13, 2023. ROA # 296. A remittitur was filed on January 11, 2024.

ROA # 298.

Given the procedural history referenced above, Defendant had a combined total of 29 months to file either a demurrer or a motion for judgment on the pleadings prior to the initial trial date. The reply brief provides no reason for the failure to file a motion challenging the pleading before the initial trial date.

The Court declines to exercise its discretion to hear this Motion at this late date. The Motion is denied on this basis and the Court does not address the substantive arguments.

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3090312