Judge: Anne Richardson, Case: 23STCV01916, Date: 2023-09-19 Tentative Ruling

Case Number: 23STCV01916    Hearing Date: January 25, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings

Plaintiffs Jessica Martinez and Yolanda Gatica—acting in pro per—sued Defendant PIH Health Good Samaritan Hospital (the Hospital) pursuant to a January 30, 2023 handwritten Complaint.

Unconnected to any stated cause of action, the Complaint alleges that staff at the Hospital received and released Plaintiff Jessica Martinez’s partner, who later died. More specifically and among other things, the Complaint alleges that the staff at the Hospital admitted Plaintiff Martinez’s partner for COVID-19, that the staff acted disdainfully in mocking Plaintiff Martinez, that she was separated from her partner on various occasions, that her partner was later released from the Hospital’s care, that Plaintiff Martinez attempted to lodge a complaint with the Hospital, and that her partner ultimately died.

Motion Before the Court

On May 5, 2023, the Hospital demurred to the Complaint on the ground that the Complaint is uncertainly stated.

Plaintiffs failed to oppose the demurrer, which came before the Court on September 19, 2023 and was sustained with 30 days’ leave to amend.

On November 17, 2023, the Hospital filed a motion to dismiss Plaintiffs’ entire action for failure to amend the pleadings following the Court’s September 19, 2023 order. The motion was set for hearing on January 25, 2024 and includes a proposed order and a proposed judgment.

On December 21, 2023, the Hospital filed an ex parte for dismissal of this action on the same grounds as the November 17, 2023 motion.

On December 22, 2023, the Court denied the ex parte application.

The Hospital’s November 17, 2023 motion is now before the Court.

Plaintiffs have failed to in any way amend the pleadings and failed to oppose the Hospital’s motion and ex parte application.

Motion to Dismiss

Legal Standard 

The court can dismiss a complaint or cross-complaint if a demurrer was sustained with leave to amend and the complaint or cross-complaint was not amended within the time allowed. (Code Civ. Proc. § 581, subds. (a)(2), (f)(2).) A motion to dismiss under section 581, subdivision (f)(2) can be requested by either party or granted by the court on its own motion. (Code Civ. Proc. § 581, subd. (f)(2) [either party]; see, e.g., Ziegler v. Nickel (1998) 64 Cal.App.4th 545, 547, fn. 2 [court granted dismissal on its own motion].) The motion to dismiss is usually made by ex parte application if no late pleading has been filed and served. (See Cal. Rules of Court, rule 3.1320, subd. (h); Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, 828-829 (Gitmed); see also Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964, 976-977 [ex parte application must be served on all other appearing parties].)

If a late pleading has been filed and served, the defendant must file a noticed motion to strike the late pleading before moving to dismiss. (Gitmed, supra, 26 Cal.App.4th at p. 829; see Leader v. Health Indus. (2001) 89 Cal.App.4th 603, 614 [motion to strike and motion to dismiss can be requested in one noticed motion; defendant is not required to file separate motion to dismiss after motion to strike is granted].) An order of dismissal under section 581, subdivision (f)(2) is discretionary and is granted with prejudice. (See Code Civ. Proc., § 581, subd. (f); Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330; Harlan v. DOT (2005) 132 Cal.App.4th 868, 873-874.) But a dismissal cannot be granted under section 581, subdivision (f)(2) if the defendant asks the court to proceed to trial (or if the court proceeds to trial on its own) on a special defense raised by the defendant’s answer under Code of Civil Procedure section 597. (See Code Civ. Proc., § 581, subds. (f)(2).)

Order Dismission Action: GRANTED, with prejudice.

On September 19, 2023, the Court sustained a demurrer to the Complaint by the Hospital, giving Plaintiffs 30 days’ leave to amend. (See 9/19/23 Minutes.)

30 days after September 19, 2023 was October 19, 2023.

No First Amended Complaint appears in the record as of that date or as of this hearing.

A dismissal pursuant to Code of Civil Procedure section 581, subdivision (f)(2), is thus warranted.

The Hospital’s motion is GRANTED, with prejudice. 

Conclusion

Defendant PIH Health Good Samaritan Hospital’s Motion to Dismiss Plaintiffs’ Entire Action for Failure to Amend Complaint is GRANTED, with prejudice.