Judge: Lynne M. Hobbs, Case: 23STCV09823, Date: 2023-08-16 Tentative Ruling

Case Number: 23STCV09823    Hearing Date: March 13, 2024    Dept: 30

MARIA GUADALUPE GARCIA vs CITY OF MONTEBELLO, et al.

TENTATIVE

Defendant’s motion to dismiss is DENIED. Plaintiff is ordered to give notice.

Legal Standard

Code of Civil Procedure section 581, subdivision (f)(2) enables a court to dismiss a complaint as to a defendant after a demurrer is sustained with leave to amend, the plaintiff fails to timely amend it, and either party moves for dismissal. A dismissal pursuant to California Code of Civil Procedure section 581, subdivision (f)(2) is with prejudice. (See Parsons v. Umansky (1994) 28 Cal.App.4th 867, 870 [citing Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 789, 789].) The California Supreme Court has interpreted section 581 as “...not deny[ing] a plaintiff his day in court. It simply requires that he frame his allegations in order to state a cause of action; and if a plaintiff is unable to do so after an adequate and reasonable opportunity is afforded, he must proceed to review of such legal determination by appeal, rather than seek another trial forum in which to reassert the same claims.” (Wells, supra, 29 Cal.3d at p. 789.)

Discussion

Defendant asks the Court to dismiss the complaint because Plaintiff failed to timely amend the complaint after the Court sustained Defendant’s demurrer to the second cause of action for negligence with 20 days leave to amend.

In opposition, Plaintiff argues that after the sustaining of the second cause of action for negligence, Plaintiff elected to no longer prosecute her claim for general negligence. The cause of action for premises liability/dangerous condition of public property still stands, and Plaintiff only intends to prosecute this cause of action. Obviously, Plaintiff’s decision to not file an amended pleading within the twenty-day time period bars her from further prosecuting the action for general negligence against the City (short of obtaining further leave of Court). (See Leader v. Health Industries of America, Inc., 89 Cal.App. 4th 603 (2001).) This position was expressly communicated to the City. (Forstrom Decl., ¶ 3.) Plaintiff argues City’s contention that Plaintiff has now forfeited her right to prosecute her claims for premises liability and/or dangerous condition of public property is neither supported in law nor fact.

First, it does not appear that Code of Civil Procedure section 581(f)(2) applies here. The statute says: “The Court may dismiss the complaint 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…” (Code of Civil Procedure section 581(f)(2).) The demurrer was not to the complaint, but rather to the cause of action for negligence only. Further, it would not apply to the cause of action for premises liability/dangerous condition of public property because there was no demurrer sustained as to that cause of action.

Even if it does apply, the Court agrees with Plaintiff that she did not need to amend the complaint if she did not seek to prosecute the cause of action for negligence, because the cause of action for premises liability/dangerous condition of public property still remained. Even if Plaintiff’s position is incorrect, the statute is discretionary. Thus, the fact that Plaintiff believed she did not need to file an amended complaint is enough for this Court not to grant the motion to dismiss as Plaintiff’s position is reasonable.

Accordingly, Defendant’s motion to dismiss is DENIED.