Judge: Martha K. Gooding, Case: 2021-01232004, Date: 2022-10-17 Tentative Ruling

Motion to Dismiss – DENIED

Defendant Richard Landingham (“Defendant”) seeks an order dismissing the Complaint filed by Plaintiffs Chris Prussak (“Prussak”), Donald Ranch Welch (“Welch”), and Prussak, Welch & Avila APC (“Firm”) (collectively, “Plaintiffs”) pursuant to Code of Civil Procedure section 581, subdivision (f)(2) and CRC Rule 3.1320.  The Motion is DENIED.

As an initial matter, the Court notes Defendant filed his moving papers twice.  (ROA No. 66 and 71.)  Not noting any differences between the two motions, the Court considers only the latter-filed motion, ROA No. 71.     

The Court also notes Plaintiffs’ opposition was untimely filed on 8/1/2022, five court days before the noticed hearing date.  (Code Civ. Proc., § 1005, subd. (c).)  This did not provide Defendant sufficient time to file a timely reply.  Accordingly, the Court exercises its discretion to not consider the untimely opposition. 

“The court may dismiss the complaint as to that defendant when…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.”  (Code Civ. Proc., § 581, subd. (f)(2).) 

A motion to dismiss the 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).  (Cal. Rules of Ct., Rule 3.1320(h).) 

“If an amended pleading is filed after the time allowed, an order striking the amended pleading must be obtained by noticed motion under Code of Civil Procedure section 1010.”  (Cal. Rules of Ct., Rule 3.1320(i).) 

The filing of an amended complaint prevents a trial court from entertaining a motion to dismiss the complaint.  (Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, 828.)  “The proper procedure would have been for the defendant to bring a motion to strike the amendment before moving to dismiss the complaint. The trial court could then have chosen to exercise its discretion to strike the amendment as untimely and thereafter entertained a motion to dismiss the action. This result brings section 581, subdivision (f)(2) into harmony with section 585 default proceedings.”  (Id.) 

Plaintiffs did not timely file their amended complaint after the Court sustained Defendant’s demurrer to the initial complaint with 20 days leave to amend on 5/25/2022.  (Paoli Decl., ¶¶ 7-8; ROA No. 31.)  However, Plaintiffs filed their first amended complaint (“FAC”) on 6/29/2022, before Defendant’s ex parte application to dismiss was heard on 6/30/2022 and before Defendant filed this current motion to dismiss. 

Accordingly, Defendant’s motion to dismiss is denied.  (Cal. Rules of Ct., Rule 3.1320; Gitmed v. General Motors Corp., 26 Cal.App.4th at 828.) 

Plaintiffs are ordered to give notice.