Judge: Nathan Vu, Case: 30-2021-01233106, Date: 2022-12-19 Tentative Ruling

Please Note: The hearing on this matter is scheduled for 8:30 A.M.

Motion to Dismiss

Defendants U.S. Bank Trust National Association’s and Fay Servicing, LLC’s Motion to Dismiss the Complaint and for Entry of Judgment is GRANTED.

The complaint in its entirety shall be DISMISSED as to Defendants U.S. Bank Trust National Association and Fay Servicing, LLC.

A judgment of dismissal shall be ENTERED against Plaintiff Mark B. Lamph and in favor of Defendants U.S. Bank Trust National Association and Fay Servicing, LLC.

Defendants U.S. Bank Trust National Association and Fay Servicing, LLC (Moving Defendants) move to dismiss the complaint and for entry of judgment. Moving Defendants argue that Plaintiff Mark B. Lamph failed to file a second amended complaint after Moving Defendants’ demurrer to the first amended complaint was sustained with leave to amend.

Plaintiff’s Request for Continuance

At the previous hearing on the motion to dismiss on 10/24/2022, Plaintiff asserted that he was having issues communicating with his counsel and needed time to obtain new counsel. The Court continued the hearing to 12/19/2022, to allow Plaintiff to resolve this issue or obtain new counsel.

Since that time, no substitution of counsel or appearance of counsel has been filed, and no amended pleading or opposition to the motion to dismiss has been filed. The court will therefore proceed with the motion to dismiss.

Dismissal for Failure to File Amended Complaint

When a demurrer has been sustained with leave to amend, but no amendment has been made within the time allowed by the court, the court may dismiss on motion of either party. (See Civil Proc. Code, § 581, subd. (f)(2).)

On 07/18/2022, the court sustained Moving Defendants’ demurrer to all 7 causes of action of the first amended complaint with 15 days leave to amend. On the same day, Defendants served notice of that ruling by mail. (See ROA #68.)

Thus, Plaintiff was required to file a second amended complaint by 08/08/2022. Plaintiff has not filed a second amended complaint or offered any reason for his failure to do so.

Therefore, the court dismisses the complaint with prejudice against the Moving Defendants and orders that a judgment of dismissal be entered against Plaintiff and in favor of Moving Defendants pursuant to Civil Procedure Code section 581(f)(2).

While Section 581(f)(2) does not specifically state whether the dismissal should be with or without prejudice or whether judgment should be entered in addition to dismissal, the Supreme Court and the Rules of Court appear to contemplate a disposition with prejudice and by judgment. (See Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 789 [discussing entry of “judgment of dismissal on the sustained demurrer” when “a general demurrer is sustained with leave to amend and plaintiff does not so amend within the time authorized by the court”]; Rules of Ct. R. 3.1320, subd. (g) [allowing for “[a] motion to dismiss entire action and for entry of judgment after expiration of the time to amend following the sustaining of a demurrer”].)

The Court shall exercise its discretion to render judgment as to fewer than all defendants. (See Civil Proc. Code, §§ 578 & 579.)

Moving Defendants shall give notice of this ruling.