Judge: Virginia Keeny, Case: 22VECV01096, Date: 2023-03-28 Tentative Ruling

Case Number: 22VECV01096    Hearing Date: March 28, 2023    Dept: W

TANNETTE GATES v. warner center condominiums, et al.

DEFENDANT HIPPO ANALYTICS, INC. DBA HIPPO INSURANCE SERVICES’ MOTION TO DISMISS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 581

Date of Hearing:        March 28, 2023                     Trial Date:       None Set

Department:              W                                            Case No.:        22VECV01096

Moving Party:            Defendant Hippo Analytics, Inc. dba Hippo Insurance Services

Responding Party:     None

BACKGROUND

On August 3, 2022, Plaintiff Tannette Gates filed a complaint alleging several causes of action arising out of a kitchen pipe exploding in the unit upstairs and water from the upstairs unit damaging Plaintiffs. On January 27, 2023, Plaintiff filed an amended complaint asserting causses of action for: (1) Breach of CCRs; (2) Enforcement of Equitable Servitudes; (3) Breach of Fiduciary Duty; (4) Nuisance; (5) Negligence; (6) Intentional Infliction of Emotional Distress; (7) Breach of Contract and Implied Covenant of Duty of Good Faith and Fair Dealing; (8) Third-Party Beneficiary Breach of Contract; (9) Professional Negligence and (Negligent Misrepresentation (10) Violation of Business and Professional Code § 17200; (11) Declaratory Relief; and (12) Unjust Enrichment against Warner Center Condominiums, Ross Morgan & Company, Inc. Afsaneh Safaei, Arash Safaei, Hippo Analytics, Inc., and Topa Insurance Company.

[Tentative] Ruling

Defendant Hippo Analytics, Inc. dba Hippo Insurance Services’ Motion to Dismiss Pursuant to Code of Civil Procedure Section 581 is MOOT.

ANALYSIS

Defendant Hippo Analytics, Inc. dba Hippo Insurance Services moves to dismiss Plaintiff’s action pursuant to Code of Civil Procedure section 581 on the grounds that Plaintiff has failed to amend her complaint against Hippo according to the Court’s Order on Hippo’s Demurrer and Motion to Strike.

CCP §581(f)(2) provides, as follows: “The court may dismiss the complaint as to that defendant when…Except where Section 597 applies, 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.” Moreover, “Section 581, subdivision (f)(2) ‘... gives the defendant the right to obtain a court order dismissing the action with prejudice once the court sustains a demurrer with leave to amend and the plaintiff has not amended within the time given.’” (Cano v. Glover (2006) 143 Cal.App.4th 326, 330.)

Defendant Hippo argues Plaintiff failed to oppose the demurrer filed by Hippo and when the Court provided 30 days to amend the complaint as to Hippo according to the Court’s order, Plaintiff failed to do that as well. Instead, Plaintiff completely disregarded the Court’s order by filing an amended complaint against Hippo for numerous causes of action that the Court specifically told Plaintiff they could not do so. Defendant Hippo further argues if the Court is not inclined to dismiss the entire amended complaint, all new causes of action alleged against Hippo should be dismissed with prejudice.

Plaintiff does not oppose this motion. However, Plaintiff has since filed a “Notice of Errata” with an amended complaint naming Hippo only as to their Breach of Contract cause of action.

Accordingly, Defendant Hippos’ motion to dismiss is MOOT.