Judge Richard S. Whitney, Case 37-2016-00010085-CU-BT-CTL 2024-01-05 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2016-00010085-CU-BT-CTL, Date: 2024-01-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - January 04, 2024

01/05/2024 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Business Tort Motion Hearing (Civil) 37-2016-00010085-CU-BT-CTL WEBSTER AVENUE CHURCH OF CHRIST VS. FIRE PREVENTION SERVICES INCORPORATED [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: RESPONDENT AND DEFENDANT MARCI GARCIA'S MOTION TO DISMISS is DENIED.

Defendant Marci Garcia ('Defendant') seeks to dismiss Plaintiffs Webster Avenue Church of Christ and Otha Bill 'O.B.' Brightmon's ('Plaintiffs') action because Plaintiffs failed to timely file an amended pleading after the Remittitur was issued, citing CCP section 472b. CCP section 472b provides: When a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes. When an order sustaining a demurrer without leave to amend is reversed or otherwise remanded by any order issued by a reviewing court, any amended complaint shall be filed within 30 days after the clerk of the reviewing court mails notice of the issuance of the remittitur.

(Code Civ. Proc., § 472b.) Pursuant to the Court of Appeal's instruction, this Court issued a minute order stating the following: The Court has received and reviewed the 3/25/2022 Remittitur from the Court of Appeal.

The Order granting Fire Prevention Services, Inc. ('FPS')'s Judgment on the Pleadings and sustaining Marcia Garcia ('Garcia')'s demurrer without leave to amend is reversed.

The Court grants FPS's Motion as to fraud and denies the Motion as to Plaintiff's defamation claim, but grants Plaintiff's leave to amend their cause of action for slander of title as to FPS and Garcia. The Court sustains Garcia's demurrer to the fraud cause of action, but grants leave to amend to attempt to state a cause of action for slander of title/conspiracy to commit slander of title.

(ROA # 363.) Plaintiffs assert that this Court did not comply with the California Rules of Court, Rule 3.1109(a) nor with the instruction of the Court of Appeal. The Court disagrees, in part, and agrees, in part.

California Rules of Court, Rule 3.1109(a) provides: When the court rules on a motion or makes an order or renders a judgment in a matter it has taken under submission, the clerk must immediately notify the parties of the ruling, order, or judgment. The Calendar No.: Event ID: TENTATIVE RULINGS

3043320 47 CASE NUMBER: CASE TITLE: WEBSTER AVENUE CHURCH OF CHRIST VS. FIRE PREVENTION 37-2016-00010085-CU-BT-CTL notification, which must specifically identify the matter ruled on, may be given by serving electronically or mailing the parties a copy of the ruling, order, or judgment, and it constitutes service of notice only if the clerk is required to give notice under Code of Civil Procedure section 664.5.

The Court disagrees that the minute order does not satisfy the instructions from the Court of Appeal and California Rules of Court, Rule 3.1109(a) in that it orders as required of the Court of Appeal and specifies the matters ruled on, as required under California Rules of Court, Rule 3.1109(a). However, it is undisputed that the Court did not serve the minute order on Plaintiffs. As the Court did not serve (mail or otherwise) notice of the ruling, as required under CCP section 472b and California Rules of Court, Rule 3.1109(a), Defendant's argument under CCP section 472b fails.

Defendant argues, in reply, that the Court should still dismiss the action under CCP section 583.410 (a) and (b). Defendant did not move based on CCP section 583.410. The Court finds it would be inappropriate to rule on such motion without proper briefing by both parties. However, the Court notes that it agrees Plaintiffs have been very dilatory in prosecuting their case.

The motion is denied.

Calendar No.: Event ID: TENTATIVE RULINGS

3043320 47