Judge Kerry Bensinger, Case BC692559 2023-03-08 Tentative Ruling

JALEEL MELENDEZ,

Plaintiff,

vs.

PINETREE TERRACE APARTMENTS, et al.,

Defendants.

)

CASE NO.: BC692559

[TENTATIVE] ORDER RE: DEFENDANTS PINETREE INVESTMENTS, LLC AND MABRY MANAGEMENT COMPANY, INC.’S MOTION TO DISMISS FOLLOWING REQUEST FOR ADMISSIONS DEEMED ADMITTED

Dept. 27

1:30 p.m.

March 8, 2023

INTRODUCTION

On February 1, 2018, plaintiff Jaleel Melendez (“Plaintiff”) filed this action against defendants Pinetree Terrace Apartments and Mabry Management Co., Inc. (“Mabry”) for injuries arising from a slip and fall. Plaintiff alleges that on June 12, 2017, he slipped and fell on a liquid substance on the common area staircase.

On May 31, 2019 Defendant Pinetree Terrace Apartments changed its organization to Pinetree Investments, LLC (“Pinetree”).

On December 20, 2022, the Court granted Pinetree and Mabry’s (collectively, Defendants”) motion to deem admitted Defendants’ Requests for Admission against Plaintiff.

Defendants now move for an order to dismiss Plaintiff’s complaint on the ground that Plaintiff cannot establish his claim for negligence and premises liability following the Court’s Order granting Defendants’ December 20, 2022 Motion to Deem Requests for Admission Admitted. The motion is unopposed.

Legal Principles

Dismissal is mandatory where service is not timely made in an action (Code Civ. Proc. § 583.250, subd. (a)) or if the action is not timely brought to trial (Code Civ. Proc. § 583.260, subd. (a)). The Court may dismiss the complaint as to a defendant (1) after a demurrer to the complaint is sustained without leave to amend and either party moves for dismissal; (2) 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; (3) after a motion to strike the whole of a complaint is granted without leave to amend and either party moves for dismissal, or (4) after a motion to strike the whole of a complaint or portion thereof is granted with leave to amend the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” (Code Civ. Proc. § 581, subd. (f).) The Court, after notice to the affected party, and after opportunity for hearing, may impose a terminating sanction by issuing an order dismissing the action. (Code Civ. Proc. § 2023.030, subd. (d)(3).)

Application

Here, Defendants do not seek an order to dismiss Plaintiff’s Complaint by any of the foregoing methods. Rather, Defendants base their Motion on the argument that Plaintiff is unable to establish its negligence and premises liability claims following the Court’s order granting Defendant’s Motion to Deem Requests for Admission Admitted. There is no authority, and Defendants do not cite to any, for the proposition that a party may move to dismiss upon such grounds.

Conclusion

Defendants’ motion is DENIED.

Moving parties to give notice.

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.¿