Judge: Theresa M. Traber, Case: 22STCV33082, Date: 2024-03-06 Tentative Ruling

Case Number: 22STCV33082    Hearing Date: March 6, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 6, 2024                        TRIAL DATE: NOT SET

CASE:                         Jesus Toro Barragan et al. v. Joe Munoz, et al.

CASE NO.:                 22STCV33082           

DEMURRER TO COMPLAINT

MOVING PARTY:               Defendant Abel Orozco

RESPONDING PARTY(S): Plaintiff, Jaime Ocampo,

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a wage and hour action that was filed on October 10, 2022. Plaintiffs allege that Defendants failed to pay regular wages and overtime, and to provide meal and rest periods as required by law.

Defendant Abel Orozco demurs to the Complaint in its entirety.

TENTATIVE RULING:

Defendant Abel Orozco demurs to the Complaint in its entirety.

On December 19, 2022, Defendant filed a demurrer contending that Plaintiffs’ claims should be dismissed because (1) the action was subject to a bankruptcy stay in a bankruptcy proceeding concerning Next Stage Engineering, LLP; (2) Plaintiffs failed to join Next Stage as an indispensable party; and (3) Plaintiffs were unlicensed contractors, and not employees. (December 19, 2022 Demurrer to Complaint.) The Court overruled Defendant’s Demurrer on July 5, 2023, finding that the bankruptcy proceeding would not require dismissal even if Defendant had established that he is the debtor, that Defendant had not established indispensability, and that the pleadings and judicially noticeable matter did not establish that Plaintiffs were unlicensed contractors. (July 5, 2023 Minute Order.)

Here, Defendant brings a motion entitled “Amended Demurrer to Complaint” which reasserts that the action is subject to a bankruptcy stay and that Next Stage has not been joined as an indispensable party.

Code of Civil Procedure section 1008 governs any motion which seeks reconsideration of prior Court orders or renews an application for an order which was not unconditionally granted. This section states, in relevant part:

 (a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

(b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.

(Code Civ. Proc. § 1008 (a)-(b).) Here, Defendant makes no attempt to demonstrate what new or different facts, circumstances, or law would require reconsideration of the Court’s July 5, 2023 order under subdivision (a), or would permit a renewed motion under subdivision (b).

            Accordingly, Defendant’s Amended Demurrer to Complaint is OVERRULED as an improper Motion for Reconsideration or Renewed Demurrer.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  March 6, 2024                                    ___________________________________

                                                                                    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.