Judge: Lee S. Arian, Case: 22STCV17802, Date: 2023-11-03 Tentative Ruling

Case Number: 22STCV17802    Hearing Date: November 8, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

This action arises out of a slip and fall incident that occurred at an El Super store. On June 1, 2022, Plaintiff Maria Margarita Carranza (“Plaintiff”) filed this premises liability action against Defendants, Chedraui USA, Inc. dba El Super (“El Super”) (erroneously sued as “El Super”) and Gallagher Bassett Services, Inc. (“GBS”) (erroneously sued as Gallagher Bassett, Svcs, Inc. D1-10).

On December 22, 2022, the Court granted Defendants’ motion to strike Plaintiff’s complaint and allowed Plaintiff twenty days leave to amend her complaint. (12/22/2022 Minute Order.) On April 4, 2023, Defendants filed their motion to dismiss. On April 13, 2023, Plaintiff filed a motion for leave to file an amended complaint. On July 25, 2023, the Court denied Defendants’ motion to dismiss and denied Plaintiff’s motion for leave to file an amended complaint (07/25/2023 Minute Order.)

On September 21, 2023, Defendants filed this instant motion to dismiss. On October 9, 2023, Plaintiff filed an addendum to the complaint. On November 3, 2023, Plaintiff filed an opposition.

II.           Judicial Notice

Plaintiff requests the Court to take judicial notice of the Ex Parte Application for Writ of Possession. The Court finds that it is not necessary to take judicial notice of the Plaintiff’s Ex Parte Application for Writ of Possession in the instant case. The request for judicial notice is DENIED. Although the Court declines to take judicial notice of this document, the Court nonetheless considers it as evidence. 

III.        LEGAL STANDARD

The court may dismiss a complaint when, after a motion to strike the whole of the complaint 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.  (CCP § 581(f)(4).)  

A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed.  (CCP § 472(a) (emphasis added).)  “After expiration of the time in which a pleading can be amended as a matter of course, the pleading can only be amended by obtaining the permission of the court.”  (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.)  “The court may, in furtherance of justice, and on any terms as may be proper, ... in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding …”  (CCP § 473(a)(1) (emphasis added).)  “Assuming proper notice, the trial court has wide discretion in determining whether to allow the amendment, but the appropriate exercise of that discretion requires the trial court to consider a number of factors: ‘including the conduct of the moving party and the belated presentation of the amendment. ... The law is well settled that a long-deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court's denial of the amendment.’”  (Leader, supra, 89 Cal.App.4th at p. 613 (citations omitted).)

“[F]ailure to file an amended complaint within the time allowed by the court subjected any subsequently filed pleading to a motion to strike, either by defendants or on the court's own motion.”  (Leader, supra, 89 Cal.App.4th at p. 613.  “The court may, upon a motion made pursuant to Section 435 [allowing motions to strike], or at any time in its discretion, and upon terms it deems proper: (b) Strike out all ... of any pleading not drawn or filed in conformity with ... an order of the court.”  (CCP § 436.)

IV.         DISCUSSION

Defendants seek a court order dismissing the complaint on the grounds that Plaintiff failed to comply with the Court’s December 22, 2022, and July 24, 2023 orders and failed to file an amended complaint or motion for leave to file an amended complaint.  

In opposition, Plaintiff asserts that Defendants have failed to pay Plaintiff a settlement award and Defendants refuse to provide production of documents after a subpoena was served on October 10, 2023, and Plaintiff requests sanctions on each Defendant for failing to produce the documents ordered. Plaintiff requests the Court to dismiss Defendants’ motion to dismiss pending the production of documents.

On November 23, 2022, Defendants filed a demurrer and motion to strike Plaintiff’s complaint. (Do Decl.¶3.) On December 22, 2022, the Court granted Defendants’ motion to strike Plaintiff’s complaint and allowed Plaintiff twenty days leave to amend her complaint. (Id. at ¶4, See 12/22/2022 Minute Order.) Plaintiff failed to file an Amended Complaint within the January 11, 2023 deadline or provide an explanation for her failure to do so. (Id. at ¶5.) On April 4, 2023, Defendants filed their motion to dismiss since Plaintiff failed to file an amended complaint in compliance with the Court’s December 22, 2022 order. (Id. at ¶6.) On April 13, 2023, Plaintiff filed a motion for leave to file an amended complaint, ninety days past the January 11, 2023 deadline. (Id. at ¶7.) On July 25, 2023, the Court denied Defendants’ motion to dismiss and denied Plaintiff’s motion for leave to file an amended complaint and requested Plaintiff to address her failure to file an amended pleading within twenty days after the Court granted Defendants’ motion to strike on December 22, 2022, and for waiting four months to seek leave to file the amended pleading. (Id. at ¶8, See 07/25/2023 Minute Order.) Defendants assert that Plaintiff failed to file a motion for leave to file an amended complaint by the August 17, 2023, deadline.

The Court notes that Plaintiff’s opposition is untimely and fails to address the substance of the motion. Plaintiff’s claim against Defendants are not relevant for the purposes of this motion. Based on a further review of the evidence, Defendants have met their burden to show Plaintiff failed to amend the Complaint within the time allowed by the Court after the Court granted Defendants’ November 23, 2022 motion to strike the complaint.  On December 22, 2022, Plaintiff was given 20 days to amend the Complaint.  Plaintiff did not file the First Amended Complaint on January 11, 2023. On April 14, 2023, Plaintiff filed a motion for leave to amend after the January 11, 2023 deadline passed. Given Plaintiff’s failure to timely seek leave to amend, the Court denied Plaintiff’s motion for leave to amend the complaint. After Plaintiff’s failure to timely amend and seek leave to amend the Complaint, Defendants filed the motion for dismissal.  As such, the Court has the power under California Code of Civil Procedure Section 581(f)(4) to dismiss Plaintiff’s Complaint.

It appears that Plaintiff improperly filed an addendum to the complaint first on August 7, 2023, and subsequently again on October 9, 2023. Plaintiff’s addendum to the complaint filed on October 9, 2023, shall be stricken because Plaintiff needed to seek leave to file an amended complaint and the Court did not grant Plaintiff’s last request for leave to amend in its July 25, 2023 order. Plaintiff’s statutory right to amend the Complaint once as a matter of law terminated when Defendants filed the November 23, 2022 Motion to Strike the complaint. Plaintiff did not address her failure to file an amended pleading within twenty days and her four month delay to seek leave to file the amended pleading as requested by the Court’s July 25, 2023 order. Furthermore, Plaintiff has failed to demonstrate that Defendants’ motion to dismiss should be denied despite her failure to obey the Court’s Order. Therefore, Plaintiff’s addendums to the complaint are stricken because they were not filed in conformity with this Court’s order.

V.           CONCLUSION

Plaintiff’s addendums to the complaint filed on August 7, 2023, and October 9, 2023, is STRICKEN.  Defendants’ motion to dismiss is GRANTED.    

Moving party 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.

    Dated this 8^th day of November 2023