Judge: Gregory Keosian, Case: 21STCV39315, Date: 2023-04-13 Tentative Ruling

Case Number: 21STCV39315    Hearing Date: April 13, 2023    Dept: 61

Defendants Velur Enterprises, Inc. Velur Properties, LLC, Marylou Matienzo, and Dennis Pilien’s Motion to Dismiss is GRANTED in part, as to Plaintiff’s prayer for rescission. The motion is otherwise DENIED.

Defendants to provide notice.

I.                   MOTION TO DISMISS

“The court may dismiss the complaint as to that defendant 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.” (Code Civ. Proc. § 581, subd. (f)(2).)

This court on February 1, 2023, sustained Defendants Velur Enterprises, Inc., Velure Properties, LLC Marylou Matienzo, and Dennis Pilen’s (Defendans) demurrer without leave to amend as to the third and fourth causes of action for rescission and breach of fiduciary in the First Amended Complaint, and granted the motion to strike without leave to amend as to the second cause of action for negligent misrepresentation. The court also directed Plaintiff to join as necessary parties Eric Gene Goduco, Ma Peciosa Goduco, Odilon Aquino, Marinette C. Peterson, Danilo S. Peralta, and Equity Trust. The order identified no time in which Plaintiff was to amend the complaint to add the named parties. As of the date of Defendants’ filing of this motion on March 3, 2023, no amendment or addition to the FAC had taken place.

Defendants argue that under Rule of Court 3.1320, subd. (g), if no time is specified in which to amend the complaint following an order sustaining a demurrer, the time allowed is deemed to be 10 days. (Motion at p. 5.) Defendants point to the case Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4^th 603, 614, in which the court held that a trial court had not abused its discretion in dismissing the case when a plaintiff had filed an amended pleading after the deadline specified in a prior demurrer. (Motion  at pp. 6–7.)

Plaintiff in opposition contends that she has filed a second amended complaint (SAC) on March 27, 2023, and though the SAC does not list the necessary parties, Plaintiff on the same date filed individual amendments listing the parties as Doe defendants. (Opposition at pp. 2–3.) Plaintiff argues that the delay in amendment was due to a calendaring error committed by Plaintiff’s counsel, and that relief from the error is appropriate under Code of Civil Procedure § 473, subd. (b). (Opposition at p. 5.)

The procedural posture of this motion is not a precise fit for Code of Civil Procedure § 581, subd. (f). This court on February 1, 2023, did not grant leave to amend on any cause of action, but directed Plaintiff to add necessary parties. Such direction arguably fits within the parameters of the “leave to amend” identified both in Code of Civil Procedure § 581, subd. (f) and CRC Rule 3.1320, subd. (g).

Plaintiff, moreover, has not added the necessary parties. Plaintiff has filed amendments to the complaint, adding them as Doe defendants, but the SAC does not state the reasons for their addition, i.e. that Plaintiff seeks rescission of contracts to which they are parties. It states rather that Doe defendants are “responsible in some manner for the occurrences herein alleged and are liable to Plaintiff on the claims hereinafter set forth,” and that they are “agents and employees of the named defendants.” (SAC ¶¶ 8–9.) The SAC alleges no basis for these claims.

Thus Defendants are entitled to some relief on their motion. It is of little moment that Plaintiff’s counsel offers a declaration as to his own error in failing to amend the complaint; even with notice of the pending motion to dismiss and three weeks of time in which to prepare an amendment after it was filed, Plaintiff still has not presented an amendment compliant with this court’s order. What’s more, his supporting declaration is executed out of state and offered under penalty of perjury of the laws of Nevada, not California. (See Code Civ. Proc. § 2015.5, subd. (a), (b).)

However, Defendants are not entitled to dismissal of the entire complaint. The addition of the new parties was required because of Plaintiff’s request for a specific form of relief: rescission of the contracts to which these other people were parties. (Holder v. Home Sav. & Loan Ass'n of Los Angeles (1968) 267 Cal.App.2d 91, 107 [“In an action for rescission of a contract, all parties to the contract are indispensable to the action.”].) Rescission remains a form of relief that Plaintiff seeks in the SAC, but it is only one form of relief; Plaintiff also seeks damages and attorney fees. (SAC at pp. 10–11.) The failure to add these necessary parties forecloses only Plaintiff’s prayer for rescission; it does not prevent Plaintiff from seeking damages from injuries suffered particularly by her.

Accordingly, the motion to dismiss is GRANTED in part, as to Plaintiff’s prayer for rescission. The motion is otherwise DENIED.