Judge: Margaret L. Oldendorf, Case: 21STCV42443, Date: 2023-09-13 Tentative Ruling

Case Number: 21STCV42443    Hearing Date: November 3, 2023    Dept: P

 

 

 

 

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

 

RASHYN R. REYNOLDS,

 

                                            Plaintiff,

vs.

 

COMMUNITY HEALTH ALLIANCE OF PASADENA; and DOES 1 to 20,

 

                                            Defendants.

 

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Case No.: 21STCV42443

 

 

[TENTATIVE] ORDER GRANTING  DEFENDANT’S MOTION TO DISMISS WITH PREJUDICE

 

Date:   November 3, 2023

Time:  8:30 a.m.

Dept.:  P

 

          I.        INTRODUCTION

          In this action for negligence and negligent infliction of emotional distress, Plaintiff Rashyn R. Reynolds (Reynolds) alleges that Defendant Community Health Alliance of Pasadena (Community Health) and Dr. Lekovik gave her son a vaccination he had already received; and recommended that he undergo elective surgery he did not need. Reynolds alleges the vaccination was given and surgery was performed without her consent.

          Before the Court is Community Health’s motion to dismiss filed October 4, 2023. A demurrer by Community Health was heard and sustained on September 13, 2023. Reynolds was granted 20 days’ leave to file an amended pleading. Reynolds failed to file an amended pleading. Accordingly, Community Health’s motion to dismiss is granted.

           

II.       LEGAL STANDARD

          The court may dismiss a complaint where a demurrer is sustained with leave to amend, the plaintiff fails to amend within the time permitted, and the defendant moves for dismissal. (CCP § 581(f)(2).) Such dismissals are “with prejudice.” (Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.)

 

III.     ANALYSIS

          Community Health urges that the complaint be dismissed because “plaintiff fail[ed] to amend the Complaint in the time allowed by the Court after the sustaining of defendant’s demurrer” (Demurrer, p. 5: 3-4.) Community Health demurred to the first amended complaint on September 13, 2023. The demurrer was sustained and Reynolds was given 20 days to file a second amended complaint. (Rosenberg Decl. ¶¶ 5,6.) The second amended complaint was due October 3, 2023. (9/13/23 Minute Order; Demurrer p.5: 5-7.) However, Reynolds failed to file an amended pleading within the time permitted. Reynolds instead filed an ex parte application to extend the time to amend. The ex parte was denied. (10/12/23 Minute Order.) As Reynolds did not file an amended complaint, prevail on the ex parte order, or otherwise provide substantial justification for her failure to timely amend her complaint, the Court grants Community Health’s motion to dismiss. (CCP § 581(f)(2), see Gitmed v. General Motors Corp (1994) 26 Cal.App.4th 824, 827-828.)

 

 

 

IV.     CONCLUSION

          Defendant Community Health’s motion to dismiss is granted for plaintiff failing to file an amended complaint within the time required. This order is with prejudice.

          Moving party is ordered to lodge a proposed judgment of dismissal forthwith, and is ordered to give notice of this ruling.  

 

 

         

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT