Judge: Melvin D. Sandvig, Case: 19CHCV00892, Date: 2023-05-17 Tentative Ruling
Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F47, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2247. Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).
Case Number: 19CHCV00892 Hearing Date: May 17, 2023 Dept: F47
Dept. F47
Date: 5/17/23
Case #19CHCV00892
EX PARTE
APPLICATION TO DISMISS
Ex parte application filed on 4/4/23.
MOVING PARTY: Defendant Padita Ayana
RESPONDING PARTY: Plaintiff Jamal Salim Nasrallah
NOTICE: ok
RULING: The motion is denied.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of a landlord tenant dispute
regarding property located at 13547 Osborne Street in Arleta, California. On 11/4/19, Plaintiff Jamal Salim Nasrallah
(Plaintiff) filed this action alleging causes of action for: (1) forcible entry
and (2) forcible detainer against Padita Ayana and Parawan Ayana.
On 5/10/22, default was entered against Padita
Ayana. Also on 5/10/22, Plaintiff filed
a Doe Amendment naming Padita Ayana as Trustee of the Parawan Ayana Living
Trust. On 5/11/22, pursuant to
Plaintiff’s request, the Court entered a dismissal without prejudice of Parawan
Ayana. (See 5/11/22 Minute
Order).
On 6/6/22, the Court entered an order pursuant to the
stipulation of the parties setting aside the default entered against Padita
Ayana. On 12/7/22, Plaintiff filed the
First Amended Complaint which again asserts causes of action for: (1) forcible
entry and (2) forcible detainer. The
First Amended Complaint names Padita Ayana, individually, and as Trustee of the
Parawan Ayana Living Trust, and Parawan Ayana, individually, as
defendants.
On 1/6/23, Defendant Padita Ayana filed and served a demurrer
to the entire First Amended Complaint contending that there is a defect or
misjoinder of parties and the First Amended Complaint is uncertain. CCP 430.10(d), (f). Padita Ayana also filed and served a motion
to strike which sought an order striking allegations regarding and the prayer
for punitive damages and the prayer for
attorney fees.
On 2/28/23, the Court overruled the demurrer, in part,
and sustained it with leave to amend, in part.
(See 2/28/23 Minute Order).
The motion to strike was also granted with leave to amend. Id.
The Court ordered a Second Amended Complaint to be filed and served
within 30 days. Id.
As of 4/3/23, Plaintiff had not filed and served a Second
Amended Complaint. Therefore, on 4/4/23,
Padita Ayana filed an ex parte application seeking an order dismissing the
First Amended Complaint of Plaintiff due to his failure to amend the complaint
following the sustaining, in part, of Padita’s demurrer on 2/28/23.
On 4/4/23, Plaintiff filed a Second Amended Complaint and
an opposition to the ex parte application.
At the ex parte hearing on 4/5/23, Plaintiff represented that the Second
Amended Complaint had been filed and indicated that Plaintiff would file a
dismissal as to Parawan Ayana. (See
4/5/23 Minute Order). The hearing on the
ex parte application was continued to 5/17/23.
On 5/10/23, a reply to the opposition was filed and served.
ANALYSIS
If a demurrer is sustained with leave to amend and/or a
motion to strike is granted with leave to amend and the plaintiff fails to
amend within the time ordered, the defendant may move for dismissal. See CCP 582(f)(2), (4).
While Plaintiff failed to file the Second Amended
Complaint within the time allotted by the Court in its 2/28/23 order, as noted
above, the Second Amended Complaint has since been filed. Plaintiff’s counsel explains that the failure
to timely file the Second Amended Complaint was the result of medical issues he
has been having since early December 2022.
(See Castorina Decl.).
Since the delay in filing the Second Amended Complaint was not the fault
of Plaintiff, the Court finds that it is in the interests of justice to allow
the case to proceed and be determined on its merits.
CONCLUSION
The motion is denied.
Defendant Padita Ayana shall have 30 days from the date of this hearing
to respond to the Second Amended Complaint.