Judge: Mark E. Windham, Case: 20STLC09568, Date: 2023-01-19 Tentative Ruling

Case Number: 20STLC09568    Hearing Date: January 19, 2023    Dept: 26

Pouncy v. Alcantara’s Auto Body, et al.

MOTION IN OPPOSITION TO DISCRETIONARY DISMISSAL

(CRC Rule 3.1342)TENTATIVE RULING:

Plaintiff Terry Pouncy’s Motion in Opposition to Discretionary Dismissal is DENIED.

ANALYSIS:

Plaintiff Terry Pouncy (“Plaintiff”) filed this action for breach of contract and common counts against Defendants Alcantara’s Auto Body and Jose Alcantara (“Defendants”), on November 13, 2020. Defendants failed to file a responsive pleading and the Court set an Order to Show Cause Re Entry of Default or Dismissal and Why the Court Should Not Impose Sanctions For Failing to Comply with Rules of Court, Rule 3.110(d). (Minute Order, 05/13/22.) The OSC was continued from August 2, 2022 to December 7, 2022. (Minute Order, 08/02/22.)

Following numerous rejections of the Request for Entry of Default, default was entered against Defendant Jose Alcantara on August 10, 2022 and against Alcantara’s Auto Body on December 5, 2022. At the OSC on December 7, 2022, Plaintiff failed to appear and the Court dismissed the Complaint without prejudice. (Minute Order, 12/07/22.) Plaintiff filed the instant Motion to Oppose Discretionary Dismissal on December 22, 2022. No opposition to the Motion been filed to date.

Discussion

Although reserved as a Motion to Vacate Dismissal, the relief Plaintiff seeks is “a hearing.” (Motion, p. 1:21-23.) The Motion appears to be in the form of an opposition to a Motion to Dismiss brought under Cal. Rules of Court, rule 3.1342, insofar as it provides authority regarding the Court’s discretion to dismiss an action and on what grounds such a dismissal may be opposed. (Motion, pp. 2:10-4:14.) Plaintiff also discusses grounds to challenge the dismissal such as equitable estoppel and waiver. (Id. at pp. 4:15-5:9.) However, no Motion to Dismiss was ever brought in this action.

Nor does the Motion provide authority for the Court to set a hearing following an entry of dismissal. Finally, no supporting declaration is attached attesting the facts recited in the Motion or authenticating the numerous exhibits attached. (Id. at pp. 1-6.) Therefore, Plaintiff has not demonstrated a basis to set a hearing following dismissal of the action on December 7, 2022.

Conclusion

Plaintiff Terry Pouncy’s Motion in Opposition to Discretionary Dismissal is DENIED.

Court clerk to give notice.