Judge: Kevin C. Brazile, Case: 23STCV01847, Date: 2023-11-16 Tentative Ruling

Hearing Date: November 16, 2023

Case Name: Pappas v. Namazikhah DMD, Inc., et al.

Case No.: 21STCV19741

Matter: Motion to Dismiss

Moving Party: Defendant Robert M. Hindin

Responding Party: Plaintiff Tony Protopappas

Notice: OK

Ruling: The Motion is denied.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

This is a fraudulent transfer action relating to a stipulated judgment in BC457138.  

On December 7, 2021, the Court overruled Defendant Robert M. Hindin’s demurrer to Plaintiff’s second cause of action, but sustained the demurrer as to the sixth cause of action for accounting, with twenty days leave to amend.

On December 27, 2021, Plaintiff filed a notice stating that “he will not file a Second Amended Complaint to cure deficiencies found by the Court's sustaining demurrer as to the sixth cause of action against Defendant Robert M. Hindin. Plaintiff will instead stand on the First Amended Complaint and allow dismissal of the sixth cause as against Robert M. Hindin only. Plaintiff will proceed against Robert M. Hindin as to the second cause of action which demurrer was overruled.”

Because Plaintiff never filed a second amended complaint, Defendant Hindin now moves to dismiss Plaintiff’s accounting claim and enter judgment on that claim pursuant to Code Civ. Proc. § 581(f)(2).

Code Civ. Proc. § 581(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 it within the time allowed by the court and either party moves for dismissal.”

While the accounting claim by Plaintiff has been forfeited against Hindin, the Motion is denied because, by its plain language, Code Civ. Proc. § 581(f)(2) relates to dismissing the entirety of a complaint against a particular defendant.  (See, e.g., Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A [“If the demurrer was sustained as to all causes of action against one of several codefendants, and the time to amend has expired, that defendant may obtain a dismissal by ex parte application to the court.”] (emphasis in original); Cal. Judges Benchbook Civ. Proc. Before Trial § 15.77 [“A judge may dismiss a complaint regarding a particular defendant after sustaining that defendant's demurrer to the complaint with leave to amend, if the plaintiff fails to amend within the time allowed.”]; California Summary Judgment and Related Termination Motions § 2:23 [“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).”]; Cal. Civ. Ctrm. Hbook. & Desktop Ref. § 11:35 (2023 ed.) [“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.”].)

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.