Judge: H. Jay Ford, III, Case: 24SMCV01550, Date: 2024-11-21 Tentative Ruling

Case Number: 24SMCV01550    Hearing Date: November 21, 2024    Dept: O

JACKIE FOX AS TRUSTEE OF TH... vs JOSEPH PLASCENCIA, et al.Case No 24SMCV01550

SUBJECT: Fox Motion for Court Order Accepting FAC and Vacating Dismissal per CCP § 473(b).

Hearing Date: 11-21-24  

            Plaintiff Jackie Fox, as trustee of the CF Fox and JS Fox Living Trust's Motion for Court Order Accepting the First Amended Complaint for unlawful detainer is GRANTED.  Defendants are to file a responsive pleading within five days. 

REASONING

            On May 28, 2024, the Court sustained Defendants’ demurrer to Plaintiff’s complaint for unlawful detainer with leave to amend. The Court ordered Plaintiff to file its amended complaint two weeks, or fourteen days, from the 5-28-24 order. (See 5-28-24 Minute Order.)  That deadline expired on June 11, 2024.  Plaintiff electronically filed, and served by email, its amended complaint on July, 12, 2024. (See the POS attached to the amended complaint.)

            Defendants have not filed a response to the amended complaint.  Nor did Defendants pursue an ex parte application requesting the action be dismissed under CCP §581 subd (f)(2) [“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.”(Emphasis added.);  (See, California Rules of Court, Rule 3.1320 subd (h); Wilburn v. Oakland Hospital (1989) 213 Cal.App.3d 1107, 1110  ([A]n ex parte application to dismiss after failure of the party to amend does not require a noticed motion.”]  On August 5, 2024, Defendants’ counsel sent Plaintiff’s counsel a letter stating he was not served with the amended complaint, demanded the action be dismissed, and threated to file a motion to dismiss if Plaintiff did not dismiss the action or bring a motion to “allow the time-barred filing.”  

            Plaintiff filed its motion August 20, 2024.  Plaintiff's counsel explains he timely drafted the amended the complaint in early June of 2024, but "mistakenly forgot to file" the amended complaint by the 6-11-24 deadline, and "did not realize" his mistake until 7-12-24, and then he immediately filed the FAC. (Stein Decl., ¶¶ 3–4.)  Defendant oppose the motion arguing the first amended complaint is “time-barred,” is “legally defective” and should be “dismissed without prejudice.  The Court disagrees.

            While the Court does not condone the failure to comply with filing deadlines, the Court declines to order this action dismissed under CCP §581(f)(2), or otherwise.  The Court’s authority to dismiss this action under section 581(f)(2) is discretionary, not mandatory.  [See, Harlan v . Department of Transportation (2005) 132 Cal.App.4th 868, 874. Moreover, a noticed motion for leave to file an amended complaint after the deadline expired is not required.  As observed in Harlan “While the court had discretion to require a noticed motion before permitting Harlan to file the second amended complaint late, we think it also had discretion under these circumstances to accept the filing without a noticed motion.” (Id. at 874; Compare, CRC Rule 3.1320 subd (h): “A motion to dismiss the entire action and for entry of judgment after expiration of the time to amend following the sustaining of a demurrer may be made by ex parte application to the court under Code of Civil Procedure section 581(f)(2);” with subdivision (i): “If an amended pleading is filed after the time allowed, an order striking the amended pleading must be obtained by noticed motion under Code of Civil Procedure section 1010.”)

            More important, there is no evidence the 31-day delay in the filing of Plaintiffs’ amended complaint has caused Defendants any prejudice. “The purpose of the unlawful detainer statutes is to provide the landlord with a summary, expeditious way of getting back his property when a tenant fails to pay the rent.” Coyne v. De Leo (2018) 26 Cal.App.5th 801, 817. If there was any prejudice from the delay, it was suffered by the Plaintiff, and not the Defendants, by further delaying Plaintiff’s effort to recover possession of its property, and increasing its holdover damages that it alleges have been accruing at $500 per day since March 15, 2024.  The Court accepts Plaintiff’s counsel’s explanation of his mistake.  

            Finally, the Court declines to address Defendants’ arguments regarding the sufficiency of the allegations of the amended complaint here. That challenge is better addressed in response to a demurrer; or rather. in an action for unlawful detainer, to a motion for summary judgment. (CCP § 1170.7 (“A motion for summary judgment may be made at any time after the answer is filed upon giving five days notice. Summary judgment shall be granted or denied on the same basis as a motion under Section 437c.”))

            Plaintiff's Motion for a Court Order Accepting the the late filing of the first amended complaint is GRANTED.  Defendants are to file their responsive pleading to the first amended complaint  within five days.