Judge: Mark E. Windham, Case: 22STLC05353, Date: 2023-01-05 Tentative Ruling
Case Number: 22STLC05353 Hearing Date: January 5, 2023 Dept: 26
MOTION
TO DISMISS
TENTATIVE RULING:
Defendant
Samson Deles’ Motion to Dismiss is CONTINUED TO MARCH 2, 2023 AT 10:00
AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY FEBRUARY 16, 2023,
DEFENDANT IS TO FILE A MEMORANDUM OF POINTS AND AUTHORITIES AS REQUIRED BY CAL.
RULES OF COURT RULE 3.1113. ALSO, BY FEBRUARY 16, 2023, DEFENDANT IS TO FILE
PROOF OF SERVICE DEMONSTRATING SERVICE OF THE ORIGINAL AND SUPPLEMENTAL MOTION
PAPERS ON PLAINTIFF. FAILURE TO COMPLY WITH THE COURT’S ORDER MAY RESULT IN THE
MOTION BEING DENIED.
ANALYSIS:
Plaintiff Maria Teresa Cruz Blacano (“Plaintiff”) filed the
instant action against Defendant Samson Deles (“Defendant”) on August 12, 2022.
Defendant filed the instant Motion to Dismiss on September 22, 2022. No
opposition has been filed to date.
Discussion
As an initial matter, the Motion is not accompanied by a
proof of service showing notice of the motion and hearing date on Plaintiff.
Failure to give notice of a motion is not only a violation of the statutory
requirements but of due process. (Code Civ. Proc., § 1005; Jones v. Otero
(1984) 156 Cal.App.3d 754, 757.)
Second, the Motion is not
accompanied by a memorandum of points and authorities, as required. Instead,
the Motion offers a one-page argument that the Complaint contains no facts and
that the allegations are incorrect. (Motion, ¶¶1-2.) “The memorandum must
contain a statement of facts, a concise statement of the law, evidence and
arguments relied on, and a discussion of the statutes, cases, and textbooks
cited in support of the position advanced.” (Cal. Rules of Court, Rule
3.1113(b).) Indeed, Defendant’s failure to provide a memorandum as required by
the Rule is an “admission that the [request] is without merit and cause for its
denial.” (Cal. Rules of Court, Rule 3.1113(a), (b); In re Marriage of
Falcone & Fyke (2012) 203 Cal.App.4th 964, 976.)
Conclusion
Based on the
foregoing, the hearing on Defendant Samson Deles’ Motion to Dismiss is
CONTINUED TO MARCH 2, 2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET
COURTHOUSE. BY FEBRUARY 16, 2023, DEFENDANT IS TO FILE A MEMORANDUM OF POINTS
AND AUTHORITIES AS REQUIRED BY CAL. RULES OF COURT RULE 3.1113. ALSO BY
FEBRUARY 16, 2023, DEFENDANT IS TO FILE PROOF OF SERVICE DEMONSTRATING SERVICE
OF THE ORIGINAL AND SUPPLEMENTAL MOTION PAPERS ON PLAINTIFF. FAILURE TO COMPLY
WITH THE COURT’S ORDER MAY RESULT IN THE MOTION BEING DENIED.
Court clerk to give notice.