Motion to Set Aside Dismissal; Motion to Dismiss
TENTATIVE RULING(S) FOR JULY 17, 2026 Department S37 – Judge Winston Keh This court follows California Rules of Court, rule 3.1308(b) for tentative rulings. (See San Bernardino Superior Court Local Emergency Rule 8.) Tentative rulings for each law & motion will be posted on the internet (https://www.sb-court.org) by 3:00 p.m. on the court day immediately before the hearing.
You may appear in person at the hearing although remote appearance by CourtCall is preferred. (See www.sb-court.org/general-information/remote-access).
If you do not have Internet access or if you experience difficulty with the posted tentative ruling, you may obtain the tentative ruling by calling the department (S-37) at (909) 708-8707 or the Administrative Assistant (909) 708-8756, who prepared the ruling.
If you (or both parties) wish to submit on the Tentative, notify the other party and call the department by 4:00 pm the day before and your appearance may be excused unless the Court orders you to appear.
You must appear at the hearing if you are so directed by the court in the tentative ruling. Be prepared to address those issues set forth by the court in its ruling.
UNLESS OTHERWISE NOTED, THE PREVAILING PARTY IS TO GIVE NOTICE OF THE
RULING.
Cole vs Cole
__________________________________________________________________________
TENTATIVE RULING(S):
For context, this is a quiet title litigation. On July 30, 2025, Plaintiff Pamela J. Cole filed her
Complaint against Defendant Kevin M. Cole, alleging one cause of action for quiet title.
The Complaint alleges that Pamela, individually and later as the trustee of the Cole
Family Trust, owns the property at 945 West J St., Ontario (¶¶4, 9-12). On May 11, 2021,
Pamela executed a Durable Power of Attorney (DPA) for finances in favor of her son, Kevin.
Then on September 20, 2023, she revoked Kevin’s DPA, and issued a DPA in favor of her
daughter, Candice M. McCormick (¶¶6-7). Kevin claims an interest in the Subject Property
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
(¶¶13-14).
On May 8, 2026, Defendant Kevin moved to dismiss the Complaint. As no opposition was filed,
the Court on May 28, 2026, granted the motion. Thereafter, Plaintiff moved ex parte to set her
motion to set aside the dismissal on shortened notice. On June 18, 2026, the Court granted
Plaintiff’s Ex Parte to consider Plaintiff’s Motion to Set Aside on shortened notice, and, if granted,
to reconsider the Dismiss Motion. On that same date, Plaintiff Pamela filed her Motion to Set
Aside and her Opposition to the Dismiss Motion. No opposition is on file to the Set Aside
Motion.
ANALYSIS
Set Aside. Although no opposition was filed to the Set Aside Motion, the Court GRANTS
the motion after reviewing the motion, and based on either extrinsic mistake or attorney-fault
(Code Civ. Proc., §473, subd. (b)).
Dismissal. Defendant Kevin moved to dismiss the Complaint because during the meet
and confer process required before he could Demurrer, the parties agreed that Plaintiff would
amend. On December 24, 2025, a Stipulated Order for Leave to File a First Amended Complaint
(FAC) was entered. It provided that parties agreed that Plaintiff was permitted to file a FAC.
After the stipulation, the parties discussed settlement, but when no settlement was reached,
Plaintiff’s Counsel was of the opinion that quiet title was the right avenue and there was no need
to amend the Complaint. He informed Defense Counsel that an Answer to the Complaint was
needed. (Berkley Decl. at ¶¶6, 8, 17-20, 22, 25-26.) Instead of responding to the Complaint,
Defendant filed his Dismiss Motion.
The authority for the dismissal cited in the Defendant’s Motion is Code of Civil Procedure section
581, subdivisions (f) and (m). Subdivision (f) permits a Court to dismiss an action if a Demurrer
or Strike Motion are sustained without leave to amend, or if no amended complaint is filed after a
sustained with leave to amend Demurrer or Strike Motion. Yet Plaintiff’s permission for leave to
amend was not based on a sustained Demurrer or Strike Motion. Thus, subdivision (f) offers no
support for dismissal.
Subdivision (m) provides that nothing in section 581 shall be deemed an “exclusive enumeration
of the court’s power to dismiss an action or dismiss a complaint as to a defendant.” Yet this does
not support dismissal, but only provides that the Court’s power to dismiss is not limited to the
standards listed in section 581.
Defendant Kevin asked that the Complaint be dismissed because it was withdrawn when Plaintiff
agreed to file a FAC. However, after scrutinizing the Stipulation more closely, Defendant’s
position is not accurate. The Stipulation provided that Plaintiff was permitted to file an FAC.
Nothing in the Stipulation stated that Plaintiff had withdrawn her Complaint. Nothing in the
Stipulation stated that Plaintiff was mandated to file an FAC. Rather by the language in the
Stipulation, Plaintiff was free to decline to file an FAC, and then place the obligation on
Defendant Kevin to respond via Demurrer, Strike, or Answer.
Thus, Defendant Kevin offered no reasonable ground to dismiss this action. Therefore,
Defendant’s Motion to Dismiss is DENIED.
RULING
For all the reasons stated above, the Court:
(1) GRANTS Plaintiff Pamela Cole’s Motion to Set Aside the Dismissal;
(2) DENIES Defendant Kevin Cole’s Motion to Dismiss; and
(3) ORDERS Defendant Kevin Cole to file a responsive pleading to the Complaint
within the next 15 days; and if Defendant contemplates filing a Demurrer and/or
Strike Motion, the Court reminds counsel to conduct a code-compliant meet and
confer before filing their motions. A declaration on those efforts must be submitted
with any filed Demurrer and/or Strike Motion.