Judge: Anne Hwang, Case: 22STCV31697, Date: 2023-11-16 Tentative Ruling

Case Number: 22STCV31697    Hearing Date: April 15, 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 September 28, 2022, Plaintiff Ana Olascoaga Aviles (“Plaintiff”) filed a form complaint against Defendants Los Angeles County Metropolitan Transportation Authority and Does 1 to 50 for negligence surrounding a motor vehicle accident.

On November 16, 2023, the Court sustained Defendant Los Angeles County Metropolitan Transportation Authority’s (“Defendant”) demurrer to the complaint with leave to amend within 30 days. (Min. Order, 11/16/23.) According to the proof of service filed on November 16, 2023, Defendant served electronic notice of the ruling on November 16, 2023.

On December 26, 2023, Plaintiff filed her first amended complaint (“FAC”).

On February 1, 2024, the Court sustained Defendant’s demurrer to the FAC finding that the FAC again failed to identify a specific statutory duty that was breached. (Min. Order, 2/1/24.) Defendant also argued that the FAC was filed past the Court’s deadline in the November 16, 2023 minute order. At the hearing, Plaintiff appeared claiming to have filed a second amended complaint, but no such filing existed on the docket. The Court then instructed: “To the extent Plaintiff seeks leave to amend the complaint, Plaintiff must file a proper motion. To the extent that Defendant seeks a dismissal of the complaint due to Plaintiff’s late filing of the FAC, Defendant must file a motion.” (Min. Order, 2/1/24.)

Defendant now moves to dismiss Plaintiff’s complaint 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, Plaintiff was granted leave to amend her complaint within 30 days. (Min. Order, 11/16/23.) Defendant served electronic notice of the order on November 16, 2023. Therefore, 30 days after was December 16, 2023. Since notice was provided electronically, the deadline was extended by two court days. (See Code Civ. Proc. § 1010.6(a)(3)(B).) Therefore, Plaintiff’s amended complaint was due December 19, 2023. Because Plaintiff filed her FAC on December 26, 2023, it was late.

On February 1, 2024, the Court sustained Defendant’s demurrer to the FAC. Plaintiff was instructed to file a motion for leave to amend the complaint. No such motion has been filed.

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 50, who remain unnamed and unserved since the complaint was filed on September 28, 2022. Accordingly, the Court dismisses the entirety of the complaint.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Defendant Los Angeles County Metropolitan Transportation Authority’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.