Motion to Dismiss
34-2019-00262301-CU-FR-GDS: Robert Messano vs. William Kayl 12/05/2025 Hearing on Motion to Dismiss in Department 47
Tentative Ruling
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Judson Enterprises, LLCs (Judson) motion to dismiss Plaintiffs complaint is DENIED.
Plaintiff commenced this action by filing a complaint against Defendant William Kay on August 6, 2019. Plaintiffs complaint does not assert any causes of action against Judson. On October 9, 2024, Kay filed an amended cross-complaint against Judson. On November 3, 2011, the Court denied a prior motion to dismiss filed by Defendant William Kay (Kay) on grounds Kay stipulated to extend the deadline to commence trial. The Court dropped Judsons request to join that motion due to defective notice, without prejudice to reassertion before the trial judge. Judson subsequently filed an ex parte application requesting an order for shortening time on a motion to dismiss. At trial setting on November 10, 2025, the Court continued trial and scheduled the instant hearing on Judsons motion to dismiss and granted the parties leave to file supplemental briefing.
Judson argues it is not bound by the terms of the stipulation between Plaintiff and Kay and is therefore entitled to dismissal based on Plaintiffs failure to commence trial. Judson argues it may properly seek to dismiss Plaintiffs complaint because the definition of action includes a complaint and the definition of defendant includes a cross-defendant or other person against whom an action is commenced. (Code Civ. Proc. § 583.110.) Here, however, the action commenced against Judson is Kays cross-complaint. As noted above, Plaintiffs complaint does not assert any claims against Judson.
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In opposition, Plaintiff cites to Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081,
34-2019-00262301-CU-FR-GDS: Robert Messano vs. William Kayl 12/05/2025 Hearing on Motion to Dismiss in Department 47
1093 and General Motor Corp. v. Superior Court (1966) 65 Cal.2d 88, 96 as authority that Kays cross-complaint constitutes a separate action for purposes of the dismissal statutes. Upon review, although Gaines involves a motion to dismiss, the Supreme Court did not consider or analyze whether the statute applies separate to complaints and cross-complaints. In General Motor Corp., supra, 65 Cal.2d at p. 93, the Supreme Court expressly stated that [f]or the purposes of Code of Civil Procedure section 583, actions by a plaintiff are treated as wholly separate from crossactions brought by the defendant. Although not cited by either party, other cases confirm a cross-defendant may move to dismiss a cross-complaint if it is not brought to trial within five years of the filing of the cross-complaint. (See, e.g., Tomales Bay Oyster Corp. v. Superior Court (1950) 35 Cal.2d 389.)
Judson has failed to cite any contrary authority indicating a cross-defendant may move to dismiss a complaint on grounds the plaintiff failed to commence trial against other defendants within five years. A Court need not address arguments for which a party provides no supporting authority. (Michael P. Superior Court (2001) 92 Cal.App.4th 1036, 1042 citing People v. Williams (1997) 16 Cal.4th 153.) By failing to cite competent authority to support its position, Judson has failed to meet the burden to demonstrate Judson has standing to dismiss. Further, even if Judson has standing to challenge Plaintiffs complaint against Kay, Judson fails to explain why Judsons purported right of dismissal, brought for the benefit of Kay, would not be subject to Kays stipulation to extend the deadline.
In supplemental briefing, Judson argues Plaintiff should be estopped from asserting Judson cannot move to dismiss the complaint because Plaintiff previously stipulated that Judson is an indispensable party. However, Judson fails to cite authority explaining why Judsons status as an indispensable party provides Judson standing to dismiss a complaint that does not assert any cause of action against Judson.
In sum, the Court finds Judson has failed to demonstrate it is entitled to mandatory dismissal of Plaintiffs complaint, which is asserted only against other parties. The motion to dismiss is therefore denied.
The Court notes on November 21, 2025, Kay filed a joinder to Judsons motion to dismiss. Judsons motion seeks to dismiss Plaintiffs complaint on the same grounds asserted in Kays prior motion, which was previously denied. Kay has failed to satisfy the requirements for a renewed application or a motion to reconsider under Code of Civil Procedure § 1008. Kays joinder is therefore dropped from calendar.
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO
34-2019-00262301-CU-FR-GDS: Robert Messano vs. William Kayl 12/05/2025 Hearing on Motion to Dismiss in Department 47
This case has been assigned to Department 47 for hearing. In the event that either party requests a hearing the matter will be heard at 9:30 a.m. in Department 47. Any party requesting an oral argument must contact the clerk at (916) 874-5487 and opposing counsel or parties in pro per by 12:00 p.m. on the court day before the hearing. If a proper request for hearing is not made, this shall become the order of the Court.
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