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California motion to dismiss2/22/2024 19-10-20-SC (2019 Proposed Amendments to the 1997 Rules of Civil Procedure).Gordon Rees Scully Mansukhani Northern California Employment Law Partner Edward Garcia recently won an anti-Strategic Lawsuits Against Public Participation ("SLAPP") motion to dismiss in the Sonoma County Superior Court. The plaintiff had sued another attorney for malicious prosecution, alleging that the prior lawsuit for fraud and extortion against the plaintiff had been brought improperly and without probable cause.Īt the outset of the case, Mr. Garcia filed a motion to dismiss pursuant to California’s anti-SLAPP statute. Under California Code of Civil Procedure section 425.16, a SLAPP suit can be dismissed if the defendant can show that the suit arises from an act of the defendant in furtherance of the defendant’s right of petition or free speech under the United States or California Constitution in connection with a public issue. The purpose of the statute is to encourage continued participation in matters of public significance without this participation being chilled through abuse of the judicial process and to eliminate meritless litigation at an early stage by providing an economical and expeditious remedy. 13).Ĭlick here to read the entire text of A.M. 12).Īn order granting the following is considered a dismissal with prejudice and bars the refiling of the same action or claim: (1) a motion to dismiss or (2) an affirmative defense (a) that the cause of action is barred by a prior judgment or by the statute of limitations, (b) that the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned or otherwise extinguished, or (c) that the claim on which the action is founded is unenforceable under the provisions of the statute of frauds (Rule 15, Sec. Instead, such denial may be raised on appeal after a judgment on the merits (Rule 8, Sec. The denial of affirmative defenses cannot be the subject of a motion for reconsideration or petition for certiorari, prohibition or mandamus. The trial court shall motu proprio resolve these defenses within thirty (30) calendar days from the filing of the answer (Rule 8, Sec. The other grounds to dismiss under the former 1997 Rules of Civil Procedure should be pleaded as affirmative defenses in the answer. When the grounds for a motion to dismiss are instead raised in the answer as affirmative defenses, the court may conduct a summary hearing within fifteen (15) calendar days from the filing of the answer, and shall motu proprio resolve these defenses within thirty (30) calendar days from the filing of the answer (Rule 8, Sec. It is within the discretion of the court whether to call for a hearing on the motion within fifteen (15) calendar days from filing (Rule 15, Sec. The motion to dismiss shall then be resolved by the court within fifteen (15) calendar days from its receipt of the opposition, or upon expiration of the period to file such opposition (Rule 15, Sec. The adverse party may file an opposition to the motion to dismiss within five (5) calendar days from receipt thereof without need of an order from the court. 12 of the Revised Rules states that a motion to dismiss is a prohibited pleading except when it raises any of the following grounds: (1) the court’s lack of jurisdiction over the subject matter of the claim (2) the pendency of another action between the same parties for the same cause and (3) the cause of action is barred by a prior judgment or by the statute of limitations (Rule 15, Sec. The Amended 1997 Rules of Civil Procedure (Revised Rules), which became effective on, revised the rules on motions to dismiss.
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