Judge: Anne Hwang, Case: 21STCV14402, Date: 2023-11-20 Tentative Ruling

Case Number: 21STCV14402    Hearing Date: March 14, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On April 16, 2021, Plaintiff Mamie Russell, by and through her Power of Attorney, Della Russell (Plaintiff) filed a complaint against Defendants Pomona Healthcare & Wellness Center, LLC dba Park Avenue Healthcare & Wellness Center, and Does 1 to 100 for the following: (1) elder abuse and neglect under the Elder Abuse and Dependent Adult Child Protection Act and (2) a violation of the Patient Bill of Rights.

Defendant Pomona Healthcare & Wellness Center, LLC dba Park Avenue Healthcare & Wellness Center (“Defendant”) demurred to the complaint. The Court sustained the demurrer because Plaintiff’s power of attorney, Della Russell, filed the complaint on Plaintiff’s behalf. No guardian ad litem was appointed, and the record did not show that Della Russell was a licensed attorney. The Court granted leave to amend the complaint if an application for a guardian ad litem or other proper appearance was made within 20 days. (Min. Order, 11/20/23.) On November 21, 2023, Defendant mailed notice of the Court’s order.

Defendant now moves to dismiss Plaintiff’s action pursuant to Code of Civil Procedure section 581(f)(2), arguing that Plaintiff failed to file an amended complaint within the time period specified by the Court. No opposition has been filed.

LEGAL STANDARD

Code of Civil Procedure section 581(f)(2) states: “The court may dismiss the complaint as to that defendant when: … (2) Except where Section 597 applies, after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” If a plaintiff fails to amend after the court has sustained a demurrer, the court may construe the failure to amend as an admission that the plaintiff cannot cure the defects that the court identified and dismiss the plaintiff's complaint.  (Cano v. Glover (2006) 143 Cal.App.4th 326, 330 [reversing trial court order dismissing without prejudice, and ordering dismissal with prejudice after plaintiff amended complaint four times but failed to state a cause of action].) 

DISCUSSION

Here, Plaintiff was granted leave to amend on the condition that an application for guardian ad litem or proper appearance was made within 20 days. Currently, no application for a guardian ad litem has been filed and no appearance has been made by Plaintiff. Plaintiff has received notice of this motion by mail and has not filed an opposition. Therefore, because Plaintiff failed to amend in time, the motion to dismiss as to moving defendant is granted. Moreover, the only other defendants are Does 1 through 100, who remain unnamed and unserved since the complaint was filed on April 16, 2021. Accordingly, the Court dismisses the entirety of the complaint.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Defendant Pomona Healthcare & Wellness Center, LLC’s motion to dismiss. The action is dismissed with prejudice and all dates are advanced and vacated.

Defendant shall provide notice and file a proof of service of such.