Judge: Kevin C. Brazile, Case: 24STCV12813, Date: 2025-06-09 Tentative Ruling

Hearing Date: June 9, 2025

Case Name: Dullum, et al. v. AMC Development LLC, et al.

Case No.: 24STCV03924

Matter: Motion to Dismiss

Moving Party: Defendants Zemrus Escrow, Inc. and Rebecca L. Khara Garza

Responding Party: Plaintiff Jared Dullum

Notice: OK

Ruling: The Motion to Dismiss is denied.

Moving party to give notice.

The Court encourages all parties to appear remotely via LA CourtConnect.  If submitting on the Court's tentative ruling, please follow the instructions provided above.

The operative Complaint was filed on February 16, 2024.

On April 2, 2025, the Court sustained the demurrer of Defendants Zemrus Escrow, Inc. and Rebecca L. Khara Garza, with 20 days leave to amend.

Defendants now seek to dismiss this action because Plaintiffs failed to file a timely amended complaint.

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

On April 10, 2025, Defendants gave notice of the demurrer ruling via email.  Thus, the FAC was due on May 2, 2025.

Plaintiff did not attempt to file a first amended pleading until May 14, 2025.  This pleading was rejected, and the filing was not within the time allotted by the Court.  

Plaintiff Dullum argues that his counsel had a medical crisis and seeks relief under CCP § 473(b).

Relief under CCP § 473(b), however, must be requested via a noticed motion.

On the other hand, “The decision to grant or deny a party's motion to dismiss is within the judge's discretion. 26 CA4th at 827. See Nuno v California State Univ., Bakersfield (2020) 47 CA5th 799, 807 (statutory wording of CCP § 581(f)(2) that judge ‘may dismiss’ unambiguously grants judges discretionary authority). A judge may deny the defendant's motion and permit the plaintiff to file an amended complaint when the plaintiff shows good cause for failing to file the amended complaint within the time limitations. See Contreras v Blue Cross of Cal. (1988) 199 CA3d 945, 948.”  (Cal. Judges Benchbook Civ. Proc. Before Trial § 12.66.)

Counsel indicates that “On or about April 18, 2025, shortly after the Court's ruling, I experienced a severe setback of my service-connected condition. This episode rendered me unable to walk and caused debilitating pain that made it impossible to concentrate on complex legal work or maintain normal office routines for an extended period. [¶] During this setback, I was treated in the emergency room for severe symptoms related to my pelvic floor condition. During this same period, I contacted the VA Crisis Line (988) for emergency medical support and guidance. My condition during this period was severe enough to require immediate medical intervention and prevented me from performing normal work functions.”

Given counsel’s medical condition during the amendment period, the Court, in the exercise of its discretion, denies the Motion and allows an amended pleading within 10 days.

Moving party to give notice.