Judge: Theresa M. Traber, Case: 22STCV19533, Date: 2023-11-22 Tentative Ruling

Case Number: 22STCV19533    Hearing Date: November 22, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     November 22, 2023               TRIAL DATE: NOT SET

CASE:                         Lilia Garcia-Brower, California State Labor Commissioner v. Max Inc., et al.

CASE NO.:                 22STCV19533           

MOTION TO DISMISS

MOVING PARTY:               Defendant Leon Turner

RESPONDING PARTY(S): Plaintiff Lilia Garcia Brower, California State Labor Commissioner

CASE HISTORY:

·         06/15/22: Complaint filed

·         09/12/22: Cross-Complaint filed by Defendant Leon Turner as to Teresa Trotter

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an employment action. Plaintiff alleges that Defendants unlawfully withheld an employee’s back pay and wrongfully terminated her in retaliation for contacting the Labor Commission.

            Defendant Leon Turner moves to dismiss this action.  

TENTATIVE RULING:

Defendant Leon Turner moves to dismiss this action.  

Defendant does not identify the legal authority under which this motion is brought, and a “motion to dismiss” by a defendant is not a motion authorized by the Code of Civil Procedure. To the extent that Defendant intends to challenge the sufficiency of the Complaint, that argument is properly brought as a Motion for Judgment on the Pleadings, as governed by Code of Civil Procedure section 438. However, the grounds for such a motion must appear on the face of the challenged pleading or be subject to judicial notice pursuant to Evidence Codes section 452 and 453. (See Code Civ. Proc. § 438(d).) Defendant’s motion does not cite to the pleadings and instead relies on assertions and documents that are not part of the Complaint. Thus, Defendant has not demonstrated an entitlement to judgment on the pleadings.

To the extent that Defendant seeks to show that the facts and evidence do not support Plaintiff’s claims, that argument is properly brought as a motion for summary judgment or summary adjudication pursuant to Code of Civil Procedure section 437c. However, Defendant’s motion does not even attempt to comply with the stringent procedural requirements for such a motion. (See Code Civ. Proc. § 437c.) Nor does Defendant set forth any substantive legal authority that shows he is entitled to relief on the merits of the claim. Thus, to the extent Defendant seeks summary judgment or summary adjudication, he has not demonstrated entitlement to that relief.

            Accordingly, Defendant’s Motion to Dismiss is DENIED.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  November 22, 2023                            ___________________________________

                                                                                    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.