Judge: Robert P. Dahlquist, Case: 37-2022-00040800-CU-BC-NC, Date: 2023-12-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

SOUTH BUILDING TENTATIVE RULINGS - December 21, 2023

12/22/2023  01:30:00 PM  N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert P Dahlquist

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2022-00040800-CU-BC-NC HERNANDEZ VS. ERMEL [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Dismiss, 11/27/2023

Cross-defendant Martial Etame's motion to dismiss (ROA # 47) is denied without prejudice to Etame advancing the same arguments by way of some other motion(s) or at the trial of this matter.

The court has had difficulty (1) discerning the legal and factual basis for this motion, and (2) analyzing the legal issues in the absence of a more complete factual record.

The current motion is identified in the notice of motion as a 'motion to dismiss.' But the memorandum of points and authorities and accompanying declaration refer to this motion as a demurrer. If this motion is intended to be a demurrer, it is repetitive of a previous demurrer, and would be denied on that basis.

The ruling on that demurrer is ROA # 45.

The statute cited in the notice of motion – CCP § 426.30 – does not mention the concept of a 'motion to dismiss.' Also, the statute does not appear to be applicable in this situation. As such, the court is uncertain as to the legal basis for the motion.

In addition, the moving party has not provided a sufficient record to adjudicate any substantive issues.

There is no request for judicial notice. Copies of applicable decisions and/or pleadings from the various prior lawsuits have not been provided. The unsworn statements of a party in a memorandum of points and authorities are not evidence.

Notwithstanding the above, as referenced in the ruling on the prior demurrer (ROA # 45), it appears from some of the statements in the current memorandum of points and authorities that the cross-complainant may be seeking to re-litigate claims that have been adjudicated to a final judgment elsewhere. But the court is unable to fully evaluate this issue from the limited record provided by the moving party for this motion.

This minute order constitutes the court's order. No party is required to submit a proposed order after hearing.

This is the tentative ruling for an appearance hearing (in person or remote) at 1:30 p.m. on Friday, December 22, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of December 22, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

Calendar No.: Event ID:  TENTATIVE RULINGS

3033605