Demurrer to Complaint
103 Phetsamone Final Accounting Solis vs. Integral The settlement administrator, Atticus Administration, LLC, has confirmed that the Senior Living distribution of the settlement funds has been completed and made in accordance LLC with the terms of the settlement that were approved by the Court. (ROA #271.)
2018- As Plaintiffs have shown that the administrator’s work is complete, the Court’s file 01015988 may now be closed.
Plaintiffs are ordered to give notice of this ruling to Defendants.
104 Griffin vs. Demurrer to Complaint Lendify Associates Defendant Lendify Associates LLC’s demurrer to Plaintiff Heather Griffin’s LLC complaint is OVERRULED. (Code Civ. Proc. [CCP], § 430.10, subd. (e).)
2025- Defendant shall file and serve an answer, if any, within 14 days of notice of this 01517244 ruling.
Defendant’s and Plaintiff’s requests for judicial notice (RJN) are GRANTED. (Evid. Code, § 452, subd. (d).)
Defendant’s sole argument in support of the demurrer is that Plaintiff’s complaint is barred by res judicata because the complaint is identical to one dismissed by the United States District Court for the Central District of California in Griffin v. Lendify Associates LLC, Case No. 8:25-cv-01282-JWH-ADS.
As Defendant notes, the district court’s dismissal was based on Plaintiff’s failure to comply with the district court’s Order to Show Cause re Dismissal for Lack of Prosecution. (See ROA #18 [RJN ISO Dem.] at Exh. 3.) The district court’s judgment dismissing the case cited Federal Rule of Civil Procedure (FRCP), rule 41(b) in support of its dismissal but did not specify whether the dismissal was with or without prejudice. (Id. at Exh. 4.)
FRCP, rule 41(b) states:
(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits.
As the language of FRCP, rule 41(b) itself suggests and as the Ninth Circuit has recognized, the district court has discretion to dismiss an action with or without prejudice under FRCP, rule 41(b) and under its inherent powers. (See Al-Torki v. Kaempen (9th Cir. 1996) 78 F.3d 1381, 1385.)
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The Central District has adopted a local rule providing that its dismissals under FRCP, rule 41(b) are without prejudice unless otherwise stated:
L.R. 41-1 Dismissal - Unreasonable Delay. Civil suits which have been pending for an unreasonable period of time without any action having been taken therein may, after notice, be dismissed for want of prosecution.
L.R. 41-2 Dismissal - Effect. Unless the Court provides otherwise, any dismissal pursuant to L.R. 41-1 shall be without prejudice.
(Bolding original.)
Thus, under the Central District’s Local Rule 41-2, the district court’s dismissal of the Griffin action could have only been without prejudice because the district court’s judgment dismissing the case did not provide otherwise.
Indeed, Defendant even cited two Central District cases that acknowledge the district court’s discretion to dismiss with or without prejudice under FRCP, rule 41(b) and that cite the Central District’s Local Rule 41-2 providing for dismissals without prejudice as the default rule when the court does not state otherwise. (See Myers v. Unknown (C.D.Cal. Nov. 25, 2020, Case No. 5:20-cv-01564-JWH-KES) 2020 U.S. Dist. LEXIS 223606, *3 [“The Court has discretion to dismiss an action under Rule 41(b) with or without prejudice.
See Local Rule 41-2 (‘[u]nless the Court provides otherwise, any dismissal pursuant to [Local Rule] 41-1 [Dismissal for Unreasonable Delay] shall be without prejudice’).”], attached as RJN ISO Dem., Exh. 5; Pineda v. Lester (C.D.Cal. Aug. 13, 2019, Case No. 8:19-cv-00605- DOC-ADSx) 2019 U.S. Dist. LEXIS 136780, *5 [“this action is dismissed pursuant to Rule 41(b) and Local Rule 41-1. Local Rule 41-2 provides, ‘[u]nless the Court provides otherwise, any dismissal pursuant to [Local Rule] 41-1 shall be without prejudice.’ L.R. 41-2.
In general, a court has discretion to dismiss an action under Rule 41(b) with or without prejudice. See Fed. R. Civ. P. 41(b); Al- Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996).”], attached as RJN ISO Dem., Exh. 6.)
There is no merit to Defendant’s arguments that the district court’s dismissal was not for lack of prosecution or that Local Rule 41 does not apply here simply because the district court’s judgment did not explicitly cite Local Rule 41 or specify that the dismissal was “without prejudice.” In light of the title and substance of the district court’s OSC and the dismissal’s reference to FRCP, rule 41(b) (which governs involuntary dismissals when “the plaintiff fails to prosecute or to comply with . . . a court order”), it is clear that the district court’s subsequent dismissal of the case was made because of Plaintiff’s failure to prosecute. Pursuant to Local Rules 41-1 and 41-2, such a dismissal is, by default, without prejudice when the court does not provide otherwise. Thus, when the court did not provide otherwise, the dismissal was without prejudice.
Contrary to Defendant’s contention, Local Rule 41 is not a “subversion [or] misreading of [FRCP] Rule 41(b) [or] the Judgment itself” (Dem. P&A at p. 7) because the district court has the discretion under FRCP, rule 41(b) and its inherent powers to dismiss for failure to prosecute either with or without prejudice (Al Torki, supra, 78 F.3d at p. 1385). Nor does the Central District’s Local Rule 41
violate FRCP, rule 83, which permits district courts to adopt local rules to govern their practice so long as the local rules are consistent with the federal rules. Local Rule 41 is consistent with FRCP, Rule 41(b) in that both rules acknowledge the district court’s discretion to dismiss an action with or without prejudice under FRCP, rule 41(b) and under the court’s inherent powers. The Central District acted well within its authority to adopt a rule that governs its practice when it issues a dismissal for failure to prosecute without specifying whether the dismissal is with or without prejudice.
Plaintiff shall give notice of this ruling.
105 De La Rosa vs. Motion to Be Relieved as Counsel of Record PLAN888 Inc Attorney Anthony Cartee and law firm Cartee, LC’s motion to be relieved as 2025- counsel of record for Defendant Plan888, Inc. d/b/a Plan B is GRANTED, 01495101 effective upon the filing of the proof of service of the signed order upon the client. (Code Civ. Proc., § 284, subd. 2.)
Moving counsel shall lodge with the Court an updated proposed order including all information required to be listed in ¶ 6, including the client’s current telephone number.
An Order to Show Cause is set for May 28, 2026 at 9:30AM in Department CX102. At the hearing, the Court will strike Defendant Plan888, Inc. d/b/a Plan B’s answer for its failure to appear through counsel unless it (1) substitutes in new counsel before the hearing or (2) appears at the hearing and shows good cause otherwise. (See Merco Construction Engineers, Inc. v. Mun. Ct. (1978) 21 Cal.3d 724, 730 [corporation may not represent itself and must appear through a licensed attorney]; CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145, 1150 [same, and “court retains authority to dismiss an action if an unrepresented corporation does not obtain counsel within reasonable time”].)
Moving counsel shall give notice of this ruling and file proof of service with the Court within 5 court days.