Judge Audra Mori, Case 21STCV34192 2022-09-14 Tentative Ruling

On September 16, 2021, Plaintiff, Raul Pedraza (“Plaintiff”) filed this action against Defendant City of Los Angeles (the “City”) and Officer Ramirez (“Ramirez”) for (1) negligence and (2) assault and battery. The complaint alleges that Ramirez, who works for the Los Angeles Police Department, detained Plaintiff in a forceful manner, accused Plaintiff of breaking into a certain property, and handcuffed Plaintiff without any evidence of such. The complaint alleges Ramirez had no reason for the detention and unlawful search of Plaintiff, and that Plaintiff suffered injury because of the incident.

On April 25, 2022, the City’s demurrer to the complaint was sustained with 20 days leave after finding Plaintiff failed to allege proper compliance with the Government Tort Claims Act. Defendant served Plaintiff with a Notice of Ruling regarding the demurrer and filed proof of service of such on April 26, 2022. As of July 5, 2022, Plaintiff has not filed a First Amended Complaint.

The City now moves to dismiss the complaint under CCP § 581(f)(2). This matter was last heard on July 8, 2022, where the matter was continued to July 8, 2022. (Min. Order July 8, 2022.) The Court explicitly informed the parties that it was a one time and final extension.

The City filed notice of the ruling with proof of service on July 11, 2022. To date, the Court has not received any opposition to the motion.

CCP § 581(f)(2) states: “The court may dismiss the complaint … 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.”[1] 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 with prejudice. (Cano v. Glover (2006) 143 Cal.App.4th 326, 330.)

In this case, the City attests that based on the date the City gave notice of the ruling to Plaintiff concerning the City’s demurrer, with an additional five days to account for service by mail, Plaintiff should have filed and served his First Amended Complaint no later than May 23, 2022.[2] The City avers Plaintiff has not filed an amended complaint, and so, Plaintiff’s action should be dismissed. As the City contends, Plaintiff was present at the hearing on the City’s demurrer, and the City served notice of the ruling on Plaintiff, but no First Amended Complaint has been filed. Furthermore, despite the previous two-month continuance, Plaintiff failed to file an amended complaint.

The failure to do so subjected the entire action against Moving Defendants to dismissal in the court's discretion. (CCP § 581(f)(2); Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.) The Court construes Plaintiff’s failure to file an amended complaint as an admission that Plaintiff cannot cure the defects that the Court previously identified. (Cano, 143 Cal.App.4th at 330.) Plaintiff has not opposed this motion or otherwise provided any intent to file an amended complaint.

Based on the foregoing, the City’s motion to dismiss is granted. Plaintiff’s complaint against the City is ordered dismissed.

[1] CCP § 597 provides: “When the answer pleads that the action is barred by the statute of limitations, or by a prior judgment, or that another action is pending upon the same cause of action, or sets up any other defense not involving the merits of the plaintiff's cause of action but constituting a bar or ground of abatement to the prosecution thereof, the court may, either upon its own motion or upon the motion of any party, proceed to the trial of the special defense or defenses before the trial of any other issue in the case, and if the decision of the court, or the verdict of the jury, upon any special defense so tried (other than the defense of another action pending) is in favor of the defendant pleading the same, judgment for the defendant shall thereupon be entered and no trial of other issues in the action shall be had unless that judgment shall be reversed on appeal or otherwise set aside or vacated; and where the defense of another action pending or a demurrer based upon subdivision (c) of Section 430.10 is sustained (and no other special defense is sustained) an interlocutory judgment shall be entered in favor of the defendant pleading the same to the effect that no trial of other issues shall be had until the final determination of that other action, and the plaintiff may appeal from the interlocutory judgment in the same manner and within the same time as is now or may be hereafter provided by law for appeals from judgments…” This provision is not applicable here.

[2] 25 days after April 26, 2022, was Saturday, May 21, 2022, with the next court day being May 23, 2022.