Judge: Anne Hwang, Case: 22STCV04906, Date: 2023-08-22 Tentative Ruling

Case Number: 22STCV04906    Hearing Date: April 17, 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 February 8, 2022, Plaintiffs Jorge R. Zamarita, Carlos R. Zamarita, Deisi Rodriguez, Jozelee Rodriguez, and Georgina Rodriguez, (collectively, “Plaintiffs”) individually and as successors in interest to Carlos Rodriguez (“Decedent”) brought this action against County of Los Angeles (“County”) and Los Angeles County Sheriff’s Department (erroneously sued separately) for damages arising from Decedent’s death while in Men’s Central Jail at 441 Bauchet St., Los Angeles, CA, 90012. Plaintiff alleged the following causes of action: (1) negligence, (2) wrongful death, and (3) premises liability.

On August 22, 2023, the Court granted County’s motion for judgment on the pleadings with leave to amend within 20 days of the hearing date. (Min. Order, 8/22/23.) On September 11, 2023, Plaintiffs filed a first amended complaint (FAC) alleging two additional causes of action against all defendants for failure to summon medical aid and a violation of the Eight Amendment to the United States Constitution.

On November 27, 2023, the Court sustained County’s demurrer to the FAC without leave to amend as to the first three causes of action. The demurrer was sustained as to the last two causes of action. The Court found that the August 22, 2023 order did not allow Plaintiffs to file additional causes of action. (Min. Order, 11/27/23.) Counsel for plaintiff was instructed to file a Motion for Leave to Amend the Complaint within 30 days of November 27, 2023, and to address the concerns raised as stated on record. (Ibid.)

On December 19, 2023, Plaintiffs filed a motion for leave to file an amended complaint, scheduled to be heard on April 24, 2024.

County now moves to dismiss Plaintiff’s complaint as to Plaintiff Carlos R. Zamarita, with prejudice under Code of Civil Procedure section 581(f)(2). 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, County argues that after the Court granted its motion for judgment on the pleadings on August 22, 2023, with leave to amend, the FAC filed did not include Carlos R. Zamarita as a plaintiff in this action. (See FAC, 1–2.) Upon reviewing the pleadings, it appears that Carlos R. Zamarita only appeared as a named plaintiff in the original complaint. Therefore, as County argues, Carlos R. Zamarita failed to amend the complaint within the time specified. Plaintiffs do not oppose this motion and provide no explanation for this omission.[1]

The plain language of section 581(f)(2) gives the Court discretion to dismiss the complaint as to a defendant. Though section 581(f)(2) applies to demurrers, granting leave to amend after granting a motion for judgment on the pleadings, is procedurally equivalent to a demurrer. (See People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777 [“A motion for judgment on the pleadings is equivalent to a demurrer . . . .”].) Therefore, seeing no opposition, the Court grants the motion to dismiss.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Defendant County of Los Angeles’s motion to dismiss the complaint as to Plaintiff Carlos R. Zamarita, only, with prejudice.

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