Judge Walter P. Schwarm, Case 30-2018-01010824 2022-09-06 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2018-01010824, Date: 2022-09-06 Tentative Ruling

Motion No. 1:

Defendant’s (Shea Properties LLC) Motion to Dismiss (Motion), filed on 8-10-22 under ROA No. 526, is DENIED. The Notice for this Motion was filed on 8-10-22 under ROA No. 530.

The court GRANTS Defendant’s Request for Judicial Notice, filed on 8-10-22 under ROA No. 532, pursuant to Evidence Code section 452, subdivisions (c) and (d).

The Motion states, “Despite SP-LLC having demonstrated through irrefutable evidence that it was improperly named in this case, was not a party to the subject lease, was never the property manager for Woodbridge, had no involvement in the UD Action, and, of course, never received any of the $6,921.76 levied to satisfy the Default Judgment in the UD Action, Plaintiff has refused to dismiss SP-LLC, forcing SP-LLC to defend against this case for all of these years at considerable time and expense. As Plaintiff improperly continues to assert a claim against SP-LLC that he knows to be without merit and for which there exists no evidentiary support, this Motion should be granted.” (Motion; 6:18-25.)

Plaintiff’s (Hossein Haghighi) Opposition to Defendant Shea Properties LLC’s Motion to Dismiss (Opposition), filed on 8-23-22 under ROA No. 573, states, “The grounds in which Shea is requesting this Court to dismiss Plaintiff’s lawsuit lacks any applicable statutory basis. The defense is instead requesting that this Court exercise its inherent authority to dismiss this lawsuit pursuant to a non-statutory ground as outlined in Code of Civil Procedure § 583.150. Although this Court has an inherent authority to dismiss lawsuits on non-statutory grounds, there are only specific circumstances of when this authority by the Court can be exercised.” (Opposition; 4:10-16.)

Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915 (Lyons), states, “In the absence of express statutory authority, a trial court may, under certain circumstances, invoke its limited, inherent discretionary power to dismiss claims with prejudice. [Citation.] However, this power has in the past been confined to two types of situations: (1) the plaintiff has failed to prosecute diligently [citation]; or (2) the complaint has been shown to be ‘fictitious or sham’ such that the plaintiff has no valid cause of action [citation].” (Footnote 4 omitted.) Lyons further explains, “Several additional grounds for dismissal have been recognized over the years. These include: (1) lack of jurisdiction; (2) inconvenient forum (see § 410.30 [generally without prejudice]); (3) nonjusticiable controversy; and (4) plaintiff's failure to give security for costs [Citation.] None of these miscellaneous grounds is applicable here.” (Id, at p. 915, footnote 4.)

Cunha v. Anglo California National Bank of San Francisco (1939) 34 Cal.App.2d 383, 388-389 (Cunha), states, “It is obvious that the motion to dismiss was not made pursuant to the provisions of sections 581-581b, Code of Civil Procedure. But it is also true that, as to the power to dismiss, those sections are not exclusive. [Citation.] The power to dismiss was formerly exercised by courts of chancery and later it was exercised in the law courts. [Citation.] By those courts it was exercised when it was shown that an action was fictitious or sham. [Citation.] The same rules apply to a dismissal at law or in equity under code procedure unless modified by statute. [Citation.] No statute has modified the rule in this state. That a motion to dismiss is proper practice is settled law but in each case the question arises whether the specific facts presented to the court constitute grounds for an order of dismissal. Therefore the defendants had the right to make, and the trial court had jurisdiction to hear and determine, the motion to dismiss. [¶] As the court had the jurisdiction to entertain the motion the defendants had the right to support their motion with affidavits. [Citations.]”

Pianka v. State (1956) 46 Cal.2d 208, 211 (Pianka), provides, “Defendant raised the defense of sovereign immunity by means of a procedure commonly called a ‘speaking motion’ which, although not authorized by statute, has been permitted by the courts under certain circumstances in the exercise of their inherent power to prevent an abuse of judicial process. (Crowley v. Modern Faucet Mfg. Co., 44 Cal.2d 321, 324- 325 [282 P.2d 33]; McKenna v. Elliott & Horne Co., 118 Cal.App.2d 551, 555 [258 P.2d 528]; Cunha v. Anglo California Nat. Bank, 34 Cal.App.2d 383, 388-389 [93 P.2d 572]; see 2 Witkin, California Procedure (1954) 1500-1501.) However, nonstatutory speaking motions have now been superseded by the procedure governing motions for summary judgment contained in section 437c of the Code of Civil Procedure.”

Code of Civil Procedure section 581, subdivision (m), states, “The provisions of this section shall not be deemed to be an exclusive enumeration of the court's power to dismiss an action or dismiss a complaint as to a defendant.”

Defendant has not shown that the limited circumstances for a non-statutory motion to dismiss under Lyons exist Cunha is distinguishable because it was decided before the modern summary judgment statutes were enacted as discussed in Pianka.

Therefore, the court DENIES Defendant’s (Shea Properties LLC) Motion to Dismiss filed on 8-10-22 under ROA No. 526.

Plaintiff is to give notice.

Motion No. 2:

Plaintiff’s (Hossein Haghighi) unopposed Motion to Strike Defendant’s Answer Filed on April 5, 2022 and to Order Shea Properties to File an Answer (Motion), filed on 4-12-22 under ROA No. 395, is GRANTED.

Defendant’s (Shea Properties, LLC) Response to Plaintiff’s Motion to Strike Answer (Response), filed on 8-23-22 under ROA No. 584, states, “In light of Plaintiff’s desire not to pursue a clam against Woodbridge Meadows Apartments, LLC, the owner of Woodbridge Meadows Apartments (‘Woodbridge’), Woodbridge does not oppose Plaintiff’s Motion to Strike and requests that the Court dismiss Woodbridge with prejudice. As noted below, Woodbridge offered to stipulate to the dismissal of Woodbridge, but was unsuccessful.”

Based on the Response, the court GRANTS Plaintiff’s (Hossein Haghighi) unopposed Motion to Strike Defendant’s Answer Filed on April 5, 2022 and to Order Shea Properties to File an Answer, filed on 4-12-22 under ROA No. 395, and STRIKES the answer filed on 4-5-22 under ROA No. 359. It does not appear that the court has the authority to dismiss Woodbridge Meadows Apartments, LLC (Woodbridge) because Woodbridge is not a party to this action and Plaintiff does not seek to pursue Woodbridge as a party.

Plaintiff is to give notice.