Judge: Mark H. Epstein, Case: 23SMCV01679, Date: 2023-08-21 Tentative Ruling

Case Number: 23SMCV01679    Hearing Date: November 17, 2023    Dept: I

On August 21, 2023, the court sustained defendant’s demurrer with leave to amend.  The court gave plaintiff 30 days to amend.  However, plaintiff has not done so.  Defendant seeks an order of dismissal.

The unopposed motion is GRANTED.  Where leave to amend is given but no amendment is forthcoming, the court must assume that the complaint as drafted is the best plaintiff can do.  Plaintiff is, of course, entitled to stand on the complaint.  But in doing so, plaintiff’s remedy, if any, lies in the appellate court, not this one.  Accordingly, the motion is granted and defendant will submit a proposed order of dismissal.  (The current order is not quite right.  The complaint is not being dismissed because plaintiff failed to amend; it is dismissed because the court sustained defendant’s demurrer and gave plaintiff leave to amend, but plaintiff elected to stand on her complaint.)  The dismissal order will be a final order and appealable.  (The order sustaining the demurrer is, of course, not appealable.)