Judge: H. Jay Ford, III, Case: 23SMCV03547, Date: 2025-03-04 Tentative Ruling

Case Number: 23SMCV03547    Hearing Date: March 4, 2025    Dept: O

  Case Name:  Celious v. Nustats LLC, et al.

SUBJECT:                 MOTION TO DISMISS

MOVING PARTY:   Defendants Los Angeles County Metropolitan Transportation Authority; and Marco Garcia

RESP. PARTY:         Plaintiff Aaron Celious

TENTATIVE RULING

            Defendants Los Angeles County Metropolitan Transportation Authority, and Marco Garcia’s Motion to Dismiss Plaintiff Aaron Celious’s Complaint pursuant to CCP § 581(f)(2) is GRANTED, with prejudice. Plaintiff failed to timely file the Second Amended Complaint pursuant to the 8-6-24 Court Order.  Defendants Los Angeles County Metropolitan Transportation Authority, and Marco Garcia are dismissed from the Complaint.   Defendants are to submit the proposed judgment of dismissal.

            The Court orders the Second Amended Complaint filed on February 24, 2025 without leave of court STRICKEN.  Defendants Nustats LLC, Martin Kunzman, Fred Gsell, and Ryan Mccutchan are the remaining defendants within the FAC. The FAC, filed on 3-6-24, is the operative complaint.

REASONING

            CCP § 581(f)(2) provides the following:

f) The court may dismiss the complaint as to that defendant when:

. . . .

(2) 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.

(Code Civ. Proc., § 581, subd. (f)(2).)

The Court may dismiss a complaint against a defendant per CCP §581(f)(2) where the defendant’s demurrer was sustained with leave to amend and the plaintiff fails to amend within that time. “If the demurrer was sustained as to all causes of action against one of several codefendants, and the time to amend has expired, that defendant may obtain a dismissal by ex parte application to the court.” (Rylaarsdam, et al., Cal. Prac. Guide: CPBT, (Rutter Group, 2011), ¶7:145; see CCP § 581(f)(2); CRC 3.1320(h).) Such a dismissal is with prejudice: “The failure to amend ... is an admission that plaintiff has stated the case as strongly as he can and there are no facts that could be alleged to cure the defect.”  (Cano v. Glover (2006) 143 Cal.App.4th 326, 329–330.)

“It is the duty of a trial judge to see that a cause is not defeated by the mere inadvertence of a lay litigant, but such litigant is restricted to the same rules of procedure as is required of those qualified to practice before our courts. [citation] A litigant has a right to act as his own attorney [citation] “but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded.” [Citations.] ...’ ” (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055.)

Defendants Los Angeles County Metropolitan Transportation Authority; and Marco Garcia (“Defendants’) move to dismiss Plaintiff Aaron Celious’s (“Plaintiff”) FAC pursuant to CCP § 581(f)(2). On 8-6-24, The Court sustained with 50 days leave to amend Defendants demurrer to Plaintiff’s FAC. (See 8-6-24 Minute Order.) Plaintiff’s last day to amend as per the Court order was on 9-25-24, and as of the Motion to Dismiss filing date of 10-9-24, Defendants had not been served an amended Complaint nor had Plaintiff filed an amended complaint with the Court. (Ganchrow Decl., ¶ 3.) Plaintiff filed a SAC on 2-24-25, five months after the Court ordered deadline to amend, and Motion to Dismiss filing. (See 2-24-25 Amended Complaint.) Plaintiff did not file for leave to amend to file the FAC.

Plaintiff argues that the Motion to Dismiss is moot because Plaintiff filed the SAC prior to the hearing on the Motion to Dismiss.  Plaintiff is mistaken. None of the authority Plaintiff’s cited shows that an amended pleading filed without leave long after the deadline ordered by the court has expired, or prior to a court hearing on a motion to dismiss, supersedes the previous pleading. (See Sylmar Air Conditioning v. Pueblo Contracting Servs., Inc. (2004) 122 Cal.App.4th1049, 1054; see also Leader v. Health Indus. of Am., Inc. (2001) 89 Cal.App.4th 603, 613–614.)

Plaintiff argues that good cause exists to accept the SAC because Plaintiff declares that he acted in good faith and reasonably believed that the 50-day period commenced upon written notice from the court or Defendants. (Celious Decl., ¶ 4.) Essentially, Plaintiff declares he did not remember waiving notice during the 8-6-24 hearing, and thought Defendants or the Court were going to send notice in order to “initiate the 50- day period to file the Second Amended Complaint.” (Ibid.)  However, Plaintiff does not provide a declaration or any explanation of why Plaintiff then waited nearly five months from the time Plaintiff received this Motion to Dismiss to attempt to file the SAC on 2-24-25. Additionally, the 8-6-24 Minute Order clearly states that the parties waived notice, thus Plaintiff’s declaration stating they did not recall waiving notice is not persuasive. (See 8-6-24 Minute Order [“Notice is waived”].)

Finally, Plaintiff filed the opposition on 2-23-25, after the statutory deadline of 2-19-25, Even if the Court chooses not to disregard the Opposition, Plaintiff does not provide any persuasive argument or evidence is support of his request that the Court exercise its discretion under CCP 581(f)(2) to deny the motion. The court has considered Plaintiff’s excuse for not complying with the Courts order and finds Plaintiff’s claimed mistaken belief regarding notice of the Court’s order does not excuse Plaintiff’s that delay. While representing himself, at no time has Plaintiff appeared to lack any understating of the proceedings or procedure applicable to to hearings and what it means to waive notice. Indeed, Plaintiff waived notice of the Court’s prior order of February 15, 2024 sustaining the demurrer to Plaintiff’s original complaint with 20 days leave to amend. When the next demurrer to Plaintiff’s first amended complaint was sustained, Plaintiff requested additional time to file a second amended complaint as to , if he chose to do so, and granted him 50 days leave to amend. When Plaintiff again agreed to waive written notice of the Court’s ruling on that demurrer, the Court again confirmed Plaintiff understood that he would not receive written notice, and that the Court’s order (adopting the written tentative ruling which Plaintiff had at the time of the hearing) would be available for him to download from the Court’s docket. After considering the evidence presented and all the circumstances concerning Plaintiff’s delay and failure to comply the the Court’s deadline to file a second amended complaint, the Cour finds it is just and proper to grant the motion to dismiss the Los Angeles County Metropolitan Transportation Authority, and Marco Garcia. 

Defendants are to submit the proposed judgments of dismissal and give notice.