Judge: Christian R. Gullon, Case: 20PSCV00447, Date: 2023-09-19 Tentative Ruling

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Case Number: 20PSCV00447    Hearing Date: September 19, 2023    Dept: O

Tentative Ruling

MOTION FOR RECONSIDERATION OF DISMISSAL is TBD.

Background

This case arises from alleged unpaid loans. Plaintiff alleges that he gave Defendant two loans:

one in November 2018 for $94,788 and another loan in February 2019 for $29,000. To date,

Defendant has not paid the payments, including the promised profits, for a total of $133,788.

On July 10, 2020, Plaintiff filed suit.[1]

On July 15, 2021, Plaintiff filed his Third Amended Complaint (“TAC”) for Breach of Contract

and Fraud.

On January 24, 2023, Defendant filed a demurrer, which on February 22, 2023, the court

sustained with 30 days leave to amend.

On April 28, 2023, the court issued a Notice Re: Continuance of Hearing and Order about the

Status Conference Re: Amended Complaint.

On May 11, 2023, Plaintiff filed an opposition to the demurrer.

On June 9, 2023, Defendant filed a reply in support of the demurrer.[2]

On June 16, 2023, the court issued a minute order regarding the status conference re: amended complaint stating, in pertinent part, the following:

The Court states it has read and considered the minute order from February 22, 2023, indicating the Defendant's Demurrer - without Motion to Strike filed by Qui D. Ong was Sustained with leave to amend. Further, the Court finds the Plaintiff has failed to file an Amended Complaint since said ruling. Order to Show Cause Re: Plaintiff's Failure to Appear on June 16, 2023 is scheduled for 07/18/2023 at 09:00 AM in Department O at Pomona Courthouse South. Order to Show Cause Re: Why Court Should not Dismiss the Case in its Entirety is scheduled for 07/18/2023 at 09:00 AM in Department O at Pomona Courthouse South.

            Defense Counsel to give notice. (emphasis added).

On July 18, 2023, the court dismissed Plaintiff’s action, stating the following, in pertinent part: “There is no appearance by or for the Plaintiff this date. The Court states it has read and considered the minute order from February 22, 2023, indicating the Plaintiff was granted 30 days leave to amend and has yet to file an Amended Complaint. The Court orders the Amended Complaint (3rd) filed by Carlos Labaco on 07/15/2021 dismissed without prejudice.” That same day, the court filed a Certificate of Mailing, indicating that the court provided notice to Plaintiff of the court’s ruling.

On August 1, 2023, Plaintiff filed the instant motion.

Legal Standard

A formal notice of ruling is required to set the time limit running to file a motion for reconsideration. The 10-day time limit runs from service of notice of entry of the order. (Code Civ. Proc., § 1008, subd. (a).)

Pursuant to Code of Civil Procedure section 1008: 

When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

(Code Civ. Proc., § 1008) (emphasis added)

Discussion

Here, the motion has a few defects.

First, the motion is untimely. Ten days from date of the court’s notice of entry of order is July 28, 2023, but Plaintiff filed the motion on August 1, 2023.

Second, Plaintiff’s declaration does not comply with most of the requirements set forth above; merely, the declaration states that Plaintiff did not receive notice of the “last few hearings.”

Third, Plaintiff states that it was not just the June 16, 2023 ruling that he did not receive notice of, but, without specificity, “other” hearings; the court is uncertain as to the “other” hearings Plaintiff is referring to.

That said, a review of the docket corroborates Plaintiff’s contention that he did not receive notice of hearings.

First, as for the court’s 4/28/23 filing of Notice Re: Continuance of Hearing and Order about the Status Conference Re: Amended Complaint indicating the hearing previously set for 5/11/23 is moved to 6/16/23, it appears the court did not provide notice to Plaintiff because the Certificate

of Mailing only bears Defendant’s current counsel (Lloyd) and previous counsel (Sprague). Second, as for the June 16, 2023 order, Defense Counsel was to give notice, but the

court docket provides no such proof of service. Accordingly, Plaintiff’s explanation as to why he

did not attend the 7/18/23 hearing is corroborated by the lack of notice of hearing dates regarding

the status of his amended complaint and OSC to dismiss his case should Plaintiff not appear.

Therefore, even if the motion does not meet the strict requirement of CCP section 1008, a court

has the inherent authority to correct an earlier erroneous ruling. And here, the court erred in

failing to provide notice of the 6/16/23 hearing to Plaintiff—which triggered the dismissal of

Plaintiff’s case. (See In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1308, quoting Le

Francois v. Goel (2005) 35 Cal.4th 1094, 1108 [“If a court believes one of its prior interim

orders was erroneous, it should be able to correct that error no matter how it came to acquire that

belief.”].)

Notwithstanding the foregoing, the court notes that a Plaintiff’s failure to file an amended

complaint is grounds for dismissal within the court’s discretion. (Leader v. Health Industries of

America, Inc. (2001) 89 Cal.App.4th 603, 613 [“plaintiffs' failure to file an amended complaint

within the time specified subjected their entire action to dismissal in the court's discretion

under section 581, subdivision (f)(2). Under that statute, 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.”].)

Here, the court’s tentative (though not adopted) on Defendant’s demurrer to the TAC took

concern with Plaintiff changing the amount of money owed to a larger

amount than initially alleged, without an explanation. For that reason, during the hearing, the

court did not adopt its tentative and sustained the demurrer so that Plaintiff could cure the defect.

Thus, as Plaintiff was to file an amended complaint to ensure the truthfulness of the pleadings

but failed to do that within 30 days of the 2/22/23 order (and anytime soon thereafter),

the court is not inclined to grant Plaintiff’s relief.

Conclusion

Based on the foregoing, the motion is TBD at the hearing.