18-CLJ-05352 AMERICREDIT FINANCIAL SERVICES, INC. VS. CYNTHIA AGONCILLO, ET AL.

AMERICREDIT FINANCIAL SERVICES, INC CYNTHIA AGONCILLO
AUSTIN P NAGEL

DEFENDANT/CROSS-COMPLAINANT BOYD’S BODY & AUTO REPAIR SHOP, INC.’S MOTION TO DISMISS AND/OR STRIKE COMPLAINT TENTATIVE RULING:

Defendant / Cross-Complainant BOYD’S BODY & AUTO REPAIR SHOP, INC.’s Motion to Dismiss and/or Strike Complaint is DENIED.

While the Notice of Motion does not indicate the Code section(s) under which this motion is brought, the Memorandum of Points & Authorities argues that the Court may dismiss or strike the Complaint when it fails to allege facts sufficient to state a cause of action against a particular defendant, or where there is a lack of subject matter jurisdiction, citing Code Civ. Proc. §§ 437c – 439. These are the Code sections pertaining to motions for summary judgment and motions for judgment on the pleadings.

As the moving papers do not include any of the supporting documents necessary for a summary judgment motion, the Court treats this as a motion for judgment on the pleadings. A trial court may construe a motion bearing one label as a different type of motion; this is consistent with the court’s inherent authority to manage and control its docket. Sole Energy Co. v. Petrominerals Corp. (2005) 128 CA 4th 187, 192-193.

Motion fails to include a meet-and-confer declaration

A motion for judgment on the pleadings requires the moving party to file a meet-andconfer declaration. Code Civ. Proc. § 439(a). Defendant failed to file and serve a declaration that complies with the requirements of this section, and thus the motion is procedurally defective.

The Court notes that motions to strike brought pursuant to Code Civ. Proc. § 436 also require the filing of a meet-and-confer declaration, as set forth in Code Civ. Proc. § 435.5. Again, Defendant failed to file and serve a declaration stating that any meet-and-confer process with Plaintiff’s counsel took place before the instant motion was filed, rendering the motion procedurally defective.

Motion was not timely served

Defendant failed to serve the moving papers with the notice required under Code Civ. Proc. § 1005. Sixteen court days plus five days for mailing would have required Boyd’s to serve its papers on Plaintiff no later than March 22, 2016; here, the Proof of Service indicates that notice was served on March 26, 2016, four days late.

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, the plaintiff shall prepare a written order consistent with the court’s ruling for the court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. If plaintiff does not submit an order by April 29, 2019, defendant shall prepare a written order following the same rules and procedure.