Judge Lee W. Tsao, Case Number: 22STCV21184, Date: 2023-11-09 Tentative Ruling

Judge: Lee W. Tsao, Case: 22STCV21184, Date: 2023-11-09 Tentative Ruling

Case Number: 22STCV21184 Hearing Date: November 9, 2023 Dept: C

VILLAESCUSA v. CITY OF BELLFLOWER

CASE NO.: 22STCV21184

HEARING: 11/09/23

Defendant COUNTY OF LOS ANGELES’S motion to dismiss the entire action is DENIED. The motion to dismiss the first and fourth causes of action is GRANTED.

Moving Party to give Notice.

“The court may dismiss the complaint as to [a] defendant when…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.” (CCP §581(f)(2).) CCP §581(m) further provides that “[t]he provisions of this section shall not be deemed to be an exclusive enumeration of the court’s power to dismiss an action or dismiss a complaint as to a defendant.” The trial court also has authority to dismiss a complaint based on its inherent power to control the litigation. (See CCP §583.150.) Two factors are evaluated in exercising this discretionary power: “(1) the plaintiff has failed to prosecute diligently; or (2) the complaint has been shown to be ‘fictitious or sham’ such that [the] plaintiff has no valid cause of action.” (Pearlson v. Does 1 to 646 (1999) 76 Cal.App.4th 1005, 1010.)

On February 23, 2023, this Court sustained Defendant COUNTY OF LOS ANGELES’S (“County”) demurrer to the first and fourth causes of action in Plaintiff’s Complaint with 30 days leave to amend. Plaintiff failed to file a First Amended Complaint within the time allowed. Rather, Plaintiff submitted a proposed First Amended Complaint in conjunction with the Opposition to the instant Motion on October 26, 2023, more than seven months after it was due.

Plaintiff attributes the delay to moving office space and staff being out of the office for an extended period of time. (Moossai Decl., ¶¶ 5-6.) However, these assertions are undermined by Defendant’s contention that Plaintiff was notified several times that the FAC was overdue. The instant motion was filed on June 20, 2023. At two case management conferences (held on July 17, 2023 and September 22, 2023) Defense counsel reminded the clerk that counsel had not received the FAC. (Gupta Decl., ¶¶ 2-3.) Under these circumstances, the court exercises its discretion to dismiss the first and fourth causes of action as to the County.

The County’s Motion to Dismiss the entire action against it is DENIED. The County’s demurrer to Plaintiff’s Complaint only attacked the first and fourth causes of action, and this Court’s February 23, 2023 Order only addressed the first and fourth causes of action. The second and third causes of action remain viable against the County.

Accordingly, the Motion to Dismiss the first and fourth causes of action with prejudice against the County is GRANTED. (Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.) Plaintiff did not amend these causes of action within the time allowed by this Court after the Demurrer to the Complaint was sustained with 30 days leave to amend.