Judge: Colin Leis, Case: 20STCV34788, Date: 2023-02-28 Tentative Ruling

Case Number: 20STCV34788    Hearing Date: February 28, 2023    Dept: 74

Superior Court of California

County of Los Angeles – CENTRAL District

Department 74

MOVING PARTY:                Defendant Rosie Williams

RESPONDING PARTY:       None as of 2/24/23

Defendant’s Motion to Dismiss

The court considered the moving papers in connection with this motion.

BACKGROUND

            On September 11, 2020, Plaintiffs Michael Nash and John Nash filed a complaint against Defendant Rosie Williams. The First Amended Complaint alleged nine causes of action: (1) Financial Elder Abuse, (2) Accounting, (3) Conversion, (4) Intentional Misrepresentation, (5) Negligent Misrepresentation, (6) Cancellation of Instrument, (7) Constructive Trust, (8) Breach of Oral Contract, and (9) Quiet Title. Plaintiffs allege that Defendant wrongfully obtained a Quit Claim Deed of the subject property from their mother prior to her death. Plaintiffs allege that Defendant is intending to sell the subject Property but is not sharing the profits, despite the Plaintiffs’ contention the Decedent intended for the profits to be shared with Plaintiffs.

On February 17, 2022, the Court sustained Defendant’s demurrer to the first, third, fourth, fifth, sixth, eighth, and ninth causes of action with leave to amend, sustained the demurrer to the seventh cause of action without leave to amend, and overruled the demurrer as to the second cause of action. Plaintiffs were provided 30 days leave to amend, which was extended to April 18, 2022 via ex parte application. Plaintiffs failed to timely file an amended complaint. Therefore, the only cause of action at issue is the second cause of action for an accounting.

LEGAL STANDARD

If a demurrer to the entire complaint has been sustained with leave to amend, and the plaintiff fails to amend within the time permitted by the court, the defendant may bring an ex parte application to dismiss the action and for entry of judgment. (Code of Civil Procedure § 581, subd. (f)(2); California Rules of Court, Rule 3.1320 (i), see also Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964, 976.) If the court grants the motion, the dismissal must be with prejudice. (Cano v. Glover (2006) 13 Cal.App.4th 326, 329-330.)

Code of Civil Procedure § 581, subdivision (f)(2) states: “The court may dismiss the complaint as to that defendant when:  (2) . . . after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend within the time allowed by the court and either party moves for dismissal.” Cal.Rules of Court, Rule 3.1320 (h) states that “[a] motion to dismiss the entire action and for entry of judgment after expiration of the time to amend following the sustaining of a demurrer may be made by ex parte application to the court under Code of Civil Procedure section 581(f)(2).”

DISCUSSION

The court did not sustain defendant’s demurrer to the entire FAC. The court overruled defendant’s demurrer to the second cause of action for accounting. Thus, an accounting claim remains at issue. Accordingly, the case may proceed as to the accounting cause of action.

CONCLUSION

The court denies the motion to dismiss.

Defendant is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 28, 2023

_____________________________

Colin Leis

Judge of the Superior Court