Judge: Lisa R. Jaskol, Case: 22STCV00603, Date: 2023-09-25 Tentative Ruling

Case Number: 22STCV00603    Hearing Date: March 26, 2024    Dept: 28

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

On January 6, 2022, Plaintiff Alen Vartanian (“Plaintiff”) filed this action against Defendants City of Glendale (“Defendant”) and Does 1-60 for general negligence and premises liability. 

On December 15, 2023, Defendant filed a motion to dismiss to be heard on January 18, 2024.  Plaintiff has not filed an opposition.  The Court continued the hearing on the motion to March 26, 2024. 

No trial date is currently scheduled. 

PARTY’S REQUEST 

Defendant asks the Court to dismiss Plaintiff’s action. 

LEGAL STANDARD 

          Code of Civil Procedure section 581, subdivision (f)(4), provides: 

“(f) The court may dismiss the complaint as to that defendant when: 

* * *

 “(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)(4).) 

DISCUSSION 

On September 25, 2023, the Court overruled Defendant’s demurrer and granted Defendant’s motion to strike portions of Plaintiff’s complaint. The Court struck (1) “Count 1—Negligence” in the first cause of action for premises liability, (2) “Count 2—Willful Failure to Warn [Civil Code section 846]” in the first cause of action for premises liability, and (3) the second cause of action for negligence. The Court granted Plaintiff 30 days leave to amend. 

Plaintiff has not filed an amended complaint. 

In addition to the stricken claims, Plaintiff has alleged a claim against Defendant for premises liability based on a dangerous condition of public property.  (See, e.g., Defendant’s Motion to Strike p. 4 [“Plaintiff’s allegations amount to a claim for an alleged dangerous condition of public property, not negligence. The applicable statutory authority for that claim is found in Government Code sections 830–835.4. Accordingly, ‘Dangerous Condition of Public Property,’ not ‘General Negligence,’ is the proper claim based on Plaintiff’s allegations, which Plaintiff has already brought as Count Three of this same cause of action.”].)  

The Court’s rulings on Defendant’s demurrer and motion to strike did not affect Plaintiff’s claim for premises liability based on a dangerous condition of public property.  Plaintiff therefore is entitled to proceed with this claim.  (See L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 11:279, p. 11-105 [“Note that a dismissal can be ordered only where the demurrer has been sustained, or the motion to strike granted, as to all causes of action in the complaint.  Otherwise, of course, the action must proceed to trial on the balance of the complaint . . .”].) 

Even if the Court has discretion to dismiss the complaint in this situation, the Court declines to exercise that discretion because Plaintiff has asserted a claim for relief which remains unadjudicated. 

The Court denies Defendant’s motion to dismiss. 

CONCLUSION 

The Court DENIES Defendant City of Glendale’s motion to dismiss. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.