Judge: Laura A. Seigle, Case: 22STCV32963, Date: 2023-09-12 Tentative Ruling

Case Number: 22STCV32963    Hearing Date: October 26, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION TO DISMISS

            On September 12, 2023, the court sustained the demurrer of Defendant State of California to the fourth and sixth causes of action in Plaintiffs David Rosenberg and Chaya Rosenberg’s complaint without leave to amend.  The court stained the demurrer to the fifth cause of action for negligence with 15 days leave to amend.  On September 29, 2023, Plaintiffs filed a first amended complaint.

            On October 2, 2023, Defendant filed a motion to dismiss the complaint pursuant to Code of Civil Procedure section 581, subdivision (f)(2) because Plaintiffs had not filed a first amended complaint within 15 days.  In their opposition, Plaintiffs state they mis-calendared the due date for the first amended complaint. 

            Under section 581, subdivision (f)(2), the court may dismiss the complaint when the plaintiff fails to amend it within the time allowed.  This section is discretionary, as indicated by the use of “may.”  The court has the discretion to accept a late-filed amended complaint without a noticed motion.  (Harlan v. Department of Transportation (2005) 132 Cal.App.4th 868, 873.)  Plaintiffs showed they were two or three days late filing the first amended complaint due to a calendaring error.  Defendant’s remedy – that Plaintiffs appeal from a judgment of dismissal – is not efficient and is a waste of party and court resources.  It is much more efficient for the court to accept the first amended complaint, and for Defendant to answer, demurrer, or otherwise respond to the first amended complaint.

            The motion to dismiss is DENIED.

            The moving party is to give notice.