Judge: Theresa M. Traber, Case: 22STCV08372, Date: 2022-09-26 Tentative Ruling

Case Number: 22STCV08372    Hearing Date: September 26, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     September 26, 2022               TRIAL DATE: NOT SET

CASE:                         Guadalupe Guzman v. Francisco Flores

CASE NO.:                 22STCV08372           

DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:               Defendant Francisco Flores

RESPONDING PARTY(S): Plaintiff Guadalupe Guzman

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for breach of contract filed on March 8, 2022. Plaintiff hired Defendant to care for and race horses, and alleges that Defendant failed to do so properly.

Defendant demurs to and moves to strike the Complaint.

TENTATIVE RULING:

Defendant’s Demurrer to the Complaint is OVERRULED.

Defendant’s Motion to Strike the Complaint is DENIED.

DISCUSSION:

            Defendant purportedly demurs to and moves to strike the Complaint.

Defective Service

Defendant provides no proof of service indicating that the moving papers were ever served on Plaintiff’s counsel. However, Plaintiff has responded to the demurrer and motion to strike without objecting to improper service. Accordingly, the Court, finding that there is no prejudice to Plaintiff due to improper service, will address the motion on its merits.

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Meet and Confer

Defendant provides no declaration regarding any efforts to meet and confer with Plaintiff’s counsel regarding the issues in this motion. Defendant has not complied with the statutory meet and confer obligations. (See Code Civ. Proc. §§ 430.41; 435.5.)

Analysis

Defendant requests that the Court dismiss this case because, according to Defendant, the Complaint is identical to a complaint filed in a previous case, Guzman v. Flores, LASC Case No. 21STCV35995. Defendant has not requested that the Court take judicial notice of the complaint in other case. However, the Court will do so on its own motion pursuant to Evidence Code section 452(d) (court records). The previous case referenced by Defendant was dismissed on March 2, 2022 without prejudice for failure to prosecute. Defendant cites no law, and the Court is aware of none, which requires that the Court dismiss or strike a Complaint that is identical to a Complaint in a previous case that was dismissed without prejudice.

CONCLUSION:

Accordingly, Defendant’s Demurrer to the Complaint is OVERRULED.

Defendant’s Motion to Strike the Complaint is DENIED.

Defendant to give notice, unless waived.

IT IS SO ORDERED.

Dated: September 26, 2022                            ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.