Judge: Randolph M. Hammock, Case: 23STCV16761, Date: 2024-12-18 Tentative Ruling

While we remain under various emergency orders during the Covid-19 pandemic, all parties and counsel are encouraged to appear remotely on all civil matters.

If the interested parties wish to submit on the tentative ruling, they should call the judicial assistant together prior to the date of the scheduled hearing. 


Case Number: 23STCV16761    Hearing Date: December 18, 2024    Dept: 49

Ben Assil v. Lorraine Beebe

DEFENDANT’S MOTION TO DISMISS COMPLAINT FOR FAILURE TO AMEND
 

MOVING PARTY: Defendant Lorraine Beebe

RESPONDING PARTY(S): None

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Ben Assil alleges he furnished labor, services, equipment, and materials for a work of improvement on Defendant Lorraine Beebe’s house pursuant to a written agreement. Plaintiff further alleges that Defendant breached the agreement by not paying for the work, for which $96,000 remains due.

On January 29, 2024, this court sustained Defendant’s demurrer to the Complaint in its entirety, with 30-days leave to amend. Plaintiff has not filed an amended complaint. Defendant now moves to dismiss the action. No opposition was filed.  [FN 1] 

TENTATIVE RULING:

Defendant’s Motion to Dismiss is GRANTED. The action is ordered DISMISSED WITH PREJUDICE.

Moving party is ordered to give notice.

DISCUSSION:

Motion to Dismiss

Defendant moves to dismiss this action under CCP § 581(f)(2). Subject to exceptions not applicable here, section 581(f)(2) provides that the “court may dismiss the complaint” 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.”

On January 29, 2024, this court sustained Defendant’s demurrer to the Complaint in its entirety, with 30-days leave to amend. (See 01/29/2024 Final Ruling and Minute Order.) Plaintiff did not file an amended complaint within 30 days of that ruling and still has not done so as of this date. 

Accordingly, Defendant’s Motion to Dismiss is GRANTED. The action is ordered DISMISSED WITH PREJUDICE. (See Cano v. Glover (2006) 143 Cal. App. 4th 326, 330 [holding that dismissal under section 581(f)(2) operates “with prejudice”].)

IT IS SO ORDERED.

Dated:   December 18, 2024 ___________________________________
Randolph M. Hammock
Judge of the Superior Court

FN 1 - Defendant served the motion on Plaintiff electronically on October 8, 2024.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.