Velocity Investments LLC vs Jose Cervantes

Case Number

23CV04863

Case Type

Hearing Date / Time

Wed, 03/20/2024 - 10:00

Nature of Proceedings

Court Trial To be heard at 10:00am with Defendant's Motion to Dismiss; and, Motion: Order re: Dismissal of the Complaint

Tentative Ruling

For Plaintiff Velocity Investments, LLC: Christopher D. Mandarich

For Defendant Jose Cervantes: Daniel “Sparky” Abraham

                       

RULING

For the reasons set forth herein, Defendant Jose Cervantes’ motion for order of dismissal is denied.

Background

This action commenced on November 2, 2023, by the filing of the complaint by Plaintiff Velocity Investments, LLC (“Velocity”) against Defendant Jose Cervantes for breach of contract and open book account. Velocity alleges that Cervantes took out a credit account from Cross River Bank and failed to make payments as agreed. Velocity bought the debt and alleges that $13,018.61 is owed.

Cervantes now moves to dismiss arguing that he is not the same Jose Cervantes that allegedly failed to make payments. Cervantes argues that he has a different date of birth, social security number, and address than the person that had the Cross River Bank account. Cervantes filed the motion while self-represented but is now represented by counsel.

Velocity has not filed an opposition or any other responsive document to the motion.

Analysis

“(a) Service on a party or attorney

Whenever a document is required to be served on a party, the service must be made on the party's attorney if the party is represented.

“(b) “ ‘Serve and file’ ”

As used in these rules, unless a statute or rule provides for a different method for filing or service, a requirement to “serve and file” a document means that a copy of the document must be served on the attorney for each party separately represented, on each self-represented party, and on any other person or entity when required by statute, rule, or Court order, and that the document and a proof of service of the document must be filed with the Court.

“(c) “ ‘Proof of service’ ”

As used in these rules, “ ‘proof of service’ ” means a declaration stating that service has been made as provided in (a) and (b). If the proof of service names attorneys for separately represented parties, it must also state which party or parties each of the attorneys served is representing. (Cal. Rules of Court, rule 1.21; Italics added.)

“Proof of service of the moving papers must be filed no later than five Court days before the time appointed for the hearing.” (Cal. Rules of Court, rule 3.1300(c).)

Cervantes did not file a proof of service as required. As Velocity has not filed opposition, it is unclear whether they were served or have notice of the hearing. The motion must be denied due to the failure to file a proof of service.

In the alternative, the motion would be denied on substantive grounds.

“The procedure of moving to dismiss an action based on extrinsic evidence is disapproved in California and the motion is permitted only where it complies with the requirements for a motion for summary judgment. [Citations.]” (Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5.)

A motion based on extrinsic evidence is also referred to as a “speaking motion.”  A speaking motion is “a motion supported by facts outside the pleadings.” (Lerner v. Ehrlich (1963) 222 Cal.App.2d 168, 171.) Cervantes’ motion is a speaking motion as it asks the Court to consider evidence of his identity such as his driver’s license and social security card.

“[A] speaking motion to dismiss should be treated as a motion for summary judgment in order to preserve the safeguards provided by the statute.” (Pianka v. State (1956) 46 Cal.2d 208, 212.)

The motion to dismiss fails to comply with any of the procedural requirements for a summary judgment motion, which are set forth in Code of Civil Procedure section 437c. Because of this, the motion to dismiss must be denied on the merits.