Judge: Lee W. Tsao, Case: 22NWCV01237, Date: 2023-11-09 Tentative Ruling

Case Number: 22NWCV01237    Hearing Date: January 24, 2024    Dept: C

Maria Ramirez vs Ford Motor Company, et al., Case No. 22NWCV01237

In this lemon law case, Defendants Ford Motor Company and Norm Reeves Ford Superstore apply ex parte for an Order to Dismiss the entire action due to Plaintiff Maria Ramirez’s failure to amend her First Amended Complaint following the Court sustaining Defendants’ Demurrer on November 9, 2024. Plaintiff was given 15 days to file a Second Amended Complaint, yet as of the date this ex parte application was filed, Plaintiff had not done so.  Trial in this case is scheduled for May 21, 2024 and Defendants’ deadline to file a Motion for Summary Judgment is January 30, 2024.  Without an operative complaint, however, Defendants are unable to move for summary judgment. 

“A motion to dismiss an 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).” (California Rules of Court, rule 3.1320.) “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 a dismissal.” (CCP § 518(f)(2).)

In opposition, Counsel for Plaintiff submits a declaration stating that in relying on their staff to properly calendar deadlines including any Court imposed deadline to file an amended complaint, Plaintiff’s counsel failed to ensure that the amended pleading was filed on time. (Lopez Decl., ¶ 2.)  The Court is empowered to relieve a party “upon any terms as may be just . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) Relief is mandatory when it is based on an “attorney affidavit of fault,” and discretionary when based on declarations or other evidence showing “mistake, inadvertence, surprise or excusable neglect.” (Code Civ. Proc., § 473, subd. (b).) Errors made by an attorney’s staff are attributed to and deemed the “fault” of the attorney for purposes of entitlement to CCP 473(b) relief from mistake. (Hu v. Fang (2002) 104 Cal.App.4th 61, 64-65.)  Here, under the provisions of CCP § 473(b), relief is mandatory.

This ex parte application was continued from January 22, 2024 to today’s date to allow Plaintiff time to file and serve his Second Amended Complaint.  Plaintiff filed his Second Amended Complaint on January 23, 2024.  The requirements of CCP § 473(b) have now been satisfied. 

Accordingly, Defendants’ Ex Parte Application is DENIED.

Plaintiff to give notice.