Judge: Linda S. Marks, Case: 2021-01237623, Date: 2022-11-07 Tentative Ruling

Motion to Dismiss filed by ESA Management LLC and April  Martin on 8/16/22

Defendants ESA Management, LLC and April Martin (“Defendants”) move for an order dismissing the following claims, with prejudice, in Plaintiff Elliott McKenzie’s Complaint: (1) Plaintiff’s First Cause of Action for Breach of Contract; (2) Plaintiff’s Second Cause of Action for Concealment Fraud and (3) Plaintiff’s claims for punitive damages.

Initially, while Plaintiff asserts that he has not consented to electronic service, the motion was properly served by mail.

Code of Civil Procedure section 581 subdivision (f) states, in relevant part: (f) The court may dismiss the complaint as to that defendant when:

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(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.

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(4) After a motion to strike the whole of a complaint or portion thereof is granted 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. § 597(f)(2), (f)(4).)

The First Amended Complaint was filed on July 21, 2022, three (3) days late. In addition, it appears that Plaintiff served the named Defendants with the First Amended Complaint, but there is no showing that Defendants’ counsel was served.

Defendant’s have filed a late Objection based upon the following grounds: (1) The Opposition was untimely served on Defendants, who received it by U.S. mail on November 2, 2022 (the Opposition was due on October 25, 2022 pursuant to Code of Civil Procedure Section 1005(b): “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days…before the hearing”);

(2) The Opposition is substantively incorrect with an incorrect caption regarding the date of the hearing (per the face page of the caption, it appears to have been filed on July 29, 2022 and references a hearing date of August 1, 2022); and

(3) The Opposition is procedurally improper because it does not include a proper proof of service (the proof of service attached references a mailing date of September 16, 2022). (See Declaration of David M. Samuels, ¶ 2)

It is not clear what the Defendants received. The document filed with the Court is file stamped September 16, 2022, with the correct hearing date of November 7, 2022, not August 1, 2022. Consequently, it is not known if the Defendants received the same document that the Plaintiff filed with the Court.

Tentative Ruling: Plaintiff is ordered to serve the Defendants with the Opposition previously filed with the Court on September 16,2022 by overnight delivery. The motion is continued to December 5, 2022 at 10:00 am, Department C25. The Defendants are allowed to file a Reply based on the new continued hearing date. Plaintiff is not allowed to file any additional papers relating to this motion.

Plaintiff is advised that mail service of an opposition is not proper, that all papers opposing a motion must be served in accordance with Code of Civil Procedure section 1005, and that any failure to comply with the service requirements under the Code in the future may result in the Court refusing to consider late served papers.

Defendants to give notice.