Judge: Linda S. Marks, Case: 2021-01237623, Date: 2022-12-05 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.

As a threshold matter, despite the Court’s prior order on November 7, 2022 ordering Plaintiff to serve the Opposition brief on Defendants, Defendants’ reply papers provide that Defendants filed and served a Notice of Ruling by U.S. mail and email on November 7, 2022, and that “[a]s of today’s date [November 22, 2022] Plaintiff has not complied with the Court order and Defendants have not been served with Plaintiff’s Opposition brief.” (Declaration of David M. Samuels, ¶¶ 3-4; Ex. A.)

Due to Plaintiff’s failure to comply with the Court’s order and failure to serve the Opposition brief, the Court declines to consider Plaintiff’s Opposition.

Code of Civil Procedure section 581 subdivision (f) states, in relevant part:

(f) The court may dismiss the complaint as to that defendant when:

(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.

(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. Despite the late filing, neither Code of Civil Procedure section 581(f)(2) or (f)(4) mandate that the court dismiss the complaint. Rather, it provides that the court “may dismiss the complaint.” The trial court has discretion to accept a plaintiff’s late-filed complaint after the court sustains a demurrer with leave to amend. (Harlan v. Department of Transportation (2005) 132 Cal.App.4th 868, 870, 872-875.) There is no showing of any detriment or prejudice to Defendants by the late filing, and the Court exercises its discretion to accept the late-filed First Amended Complaint.

Despite Defendants’ counsel’s assertion that Plaintiff should have served Defendants’ counsel with the First Amended Complaint, no authority is cited for the proposition that a plaintiff is required to serve counsel with an amended complaint, and cannot serve the defendants. The Court notes authority which provides that “[a]fter a party has appeared in litigation and designated a counsel of record, the general rule is that future pleadings and notices may be served on that counsel. (See §§ 465, 1010 [‘Notices and other papers may be served upon the party or attorney in the manner prescribed in this chapter, when not otherwise provided by this code.’].)” (Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1209, emphasis added.)

Tentative Ruling: Defendants’ Motion to Dismiss is DENIED. The Court ORDERS Plaintiff to serve Defendants’ counsel with the First Amended Complaint within five (5) days of the date of this Order.

Defendants to give notice.