Judge: Kerry Bensinger, Case: 21STCV08999, Date: 2023-05-10 Tentative Ruling

Case Number: 21STCV08999    Hearing Date: August 16, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     August 16, 2023                                 TRIAL DATE:  October 11, 2023

CASE:                         Abraham Labbad, et al. v. City of Burbank

CASE NO.:                 21STCV08999

MOTION FOR ENTRY OF JUDGMENT

MOVING PARTY:               Defendant City of Burbank

RESPONDING PARTY:     No opposition

I.          BACKGROUND

            On March 8, 2021, Plaintiff Abraham Labbad, as Guardian ad Litem for V.C.L., a minor, filed this Complaint against Defendant City of Burbank for (1) Premises Liability, (2) Negligent Entrustment, (3) Negligent Supervision, and (4) and Dangerous Condition of Public Property.  According to the Complaint, Plaintiff injured her ankle when she fell while ice skating in the Ice-Skating rink in Downtown Burbank.  Plaintiff was not accompanied by an adult nor asked about her ice skating ability yet was allowed to rent ice skates and to proceed to the ice skating rink. Defendant is alleged to be associated with the Ice-Skating Rink.

            On April 14, 2023, Defendant filed a motion for judgment on the pleadings as to the entirety of Plaintiff’s Complaint.  On May 10, 2023, the Court granted the motion with leave to amend.  Plaintiff was ordered to file and serve an amended complaint within thirty days of the Court’s ruling.  To date, Plaintiff has not filed an amended complaint.

            On June 30, 2023, Defendant filed this motion for entry of judgment. 

            On August 7, 2023, Defendant filed a Notice of Plaintiff’s Non-Opposition to this motion.[1]

II.        LEGAL STANDARD

If a motion for judgment on the pleadings is granted with respect to the entire complaint or answer with leave to file an amended complaint or answer, as the case may be, but an amended complaint or answer is not filed, then after the time to file an amended complaint or answer, as the case may be, has expired, judgment shall be entered forthwith in favor of the moving party.  (Code Civ. Proc., § 438, subd. (h)(4)(C).)  Entry of judgment depends on whether the motion was granted as to the entire complaint and whether granted with or without leave to amend.  (Weil & Brown, Cal. Civ. Proc. Before Trial (The Rutter Group 2023) ¶ 7:350.)

Where a motion for judgment on the pleadings is granted with leave to amend, the court shall not enter a judgment in favor of a party until the following proceedings are had:

(A) If an amended pleading is filed and the moving party contends that pleading is filed after the time to file an amended pleading has expired or that the pleading is in violation of the court’s prior ruling on the motion, then that party shall move to strike the pleading and enter judgment in its favor.

(B) If no amended pleading is filed, then the party shall move for entry of judgment in its favor.

(2) All motions made pursuant to this subdivision shall be made pursuant to Section 1010.

(3) At the hearing on the motion provided for in this subdivision, the court shall determine whether to enter judgment in favor of a particular party.

(Code Civ. Proc., § 438, subd. (i).)

III.      DISCUSSION

Here, the Court granted Defendant’s motion for judgment on the pleadings as to Plaintiff’s entire Complaint on May 10, 2023.  Plaintiff was granted leave to amend and was ordered to file the amended complaint within 30 days of the Court’s order.  To date, Plaintiff has not filed an amended complaint.  As such, Defendant seeks an order for entry of judgment.

As the Court granted Defendant’s motion for judgment on the pleadings as to the whole Complaint and Plaintiff has failed to file an amended complaint, the Court finds that Defendant is entitled to an order for entry of judgment.  (Code Civ. Proc., § 438, subd. (h)(4)(C).) 

Accordingly, the motion is GRANTED.

IV.       CONCLUSION

The motion for entry of judgment is granted.  Judgment is entered in favor of Defendant City of Burbank as to Plaintiff’s entire Complaint.  Moving Party is to submit a proposed judgment within 10 days of this Order. 

Moving party to give notice.

Dated:   August 16, 2023                                          ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.