Case Number: BC704079 Hearing Date: February 14, 2020 Dept: 47

Gladys Ochoa, et al. v. Touch-Tel USA, LLC, et al.

MOTION TO DISMISS

MOVING PARTY: Defendant Amanul Syed

RESPONDING PARTY(S): No opposition on eCourt as of February 10, 2020.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs allege that Defendants Veritas Prepaid Phone Co., LLC, Mobiles Unlimited, and Woojin Telecom unlawfully sold them prepaid calling services via the “AmigoSinPin platform,” in violation of the Consumer Legal Remedies Act, the False Advertising Law (Bus. & Prof. Code § 17500). They also allege that Defendants Veritas, Touch-Tel USA, LLC, and Woojin Telecom committed contempt and civil conspiracy and that all Defendants engaged in unfair competition.

Defendant Amanul Syed moves to dismiss.

TENTATIVE RULING:

Defendant Amanul Syed’s motion to dismiss is DENIED.

DISCUSSION:

Motion To Dismiss

Defendant Amanul Syed moves to dismiss this lawsuit, although it appears that the motion was intended to be brought on behalf of Defendants Touch-Tel USA, LLC and Veritas Prepaid Phone Co. LLC.

To the extent that this motion was brought on behalf of Defendant Touch-Tel USA, LLC, this Defendant had not yet appeared in the action. Given that the motion appears to argue that the Court lacks personal jurisdiction, the Court will interpret this as a special appearance. (Slaybaugh v. Superior Court (1977) 70 Cal.App.3d 216, 222 [“The test is – Did the party appear and object only to the consideration of the case or any procedure in it because the court had not acquired jurisdiction of the person of the defendant or party? If so, then the appearance is special. If, however, he appears and asks for any relief which could be given only to a party in a pending case, or which itself would be a regular proceeding in the case, it is a general appearance . . . .”].) The Court notes, however, that filing a motion to dismiss after the deadline to respond to the complaint does not prevent entry of default. (Cf. CCP § 418.10(d) [addressing motions to dismiss filed on or before the last day to plead].)

To the extent that this motion was brought on behalf of Defendant Veritas Prepaid Phone Co. LLC, it is improper, as this Defendant was defaulted on January 7, 2019.

More generally, as to any and all moving Defendants, all motions must be supported by a memorandum of points and authorities. (CRC 3.1113(a) [“A party filing a motion . . . must serve and file a supporting memorandum.”].) No such memorandum was filed here.

“The court may construe the absence of a memorandum as an admission that the motion . . . is not meritorious and cause for its denial . . . .” (Ibid.) Here, the Court so construes this motion. Defendant has only presented factual allegations, with no legal or evidentiary support.

Accordingly, the motion to dismiss is DENIED.

Moving party to provide notice, unless waived.

IT IS SO ORDERED.

Dated: February 14, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court