Judge Ronald F. Frank, Case Number: 23TRCV03381, Date: 2024-01-02 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV03381, Date: 2024-01-02 Tentative Ruling

Case Number: 23TRCV03381 Hearing Date: March 26, 2024 Dept: 8

Tentative Ruling¿

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HEARING DATE: March 26, 2024

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CASE NUMBER: 23TRCV03381

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CASE NAME: Vivienne Halston v. Victor Ortiz, et al.

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MOVING PARTY: (1) Defendant, Victor Ortiz

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RESPONDING PARTY: (1) Plaintiff, Vivienne Halston (No Opposition)

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TRIAL DATE: None set.

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MOTION:¿ (1) Motion to Dismiss

Tentative Rulings: (1) DENIED, without prejudice

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¿I. BACKGROUND¿¿

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A. Factual¿¿

On October 17, 2023, Plaintiff, Vivienne Halston (“Plaintiff”) filed a Complaint against Defendant, Victor Ortiz, Ashish Lal, and Esa Management, LLC. The Complaint alleges causes of action for: (1) Breach of Contract; (2) Fraud; and (3) General Negligence.

On January 2, 2024, this Court sustained the demurrer to all causes of action, and allowed Plaintiff twenty (20) days leave to amend. Defendant, Victor Ortiz (“Ortiz”) notes that Plaintiff was properly given of and provided with the Court’s minute order after the ruling on demurrer. However, Defendant Ortiz asserts that Plaintiff has failed to file a first amended complaint as of the date of filing the Motion to Dismiss.

As such, Defendant Ortiz now files a Motion to Dismiss.

B. Procedural

On February 26, 2024, Defendant Ortiz filed a Motion to Dismiss. To date, no opposition has been filed. The Court notes that on February 20, 2024, the Post Office returned the Court’s Minute Order regarding the February 8, 2024 ex parte proceedings as “Not Deliverable as Addressed,” which suggests to the Court that Plaintiff may have moved or that there is a typo in the address of record for Plaintiff.

II. ANALYSIS¿

A. Legal Standard

California Rules of Court (“CRC”), rule 3.1320(g) provides: “Following a ruling on a demurrer, unless otherwise ordered, leave to answer or amend within 10 days is deemed granted, except for actions in forcible entry, forcible detainer, or unlawful detainer in which case 5 calendar days is deemed granted.” (See see¿Leader v. Health Indus. of America, Inc.¿(2001) 89 Cal.App.4th 603, 611—after expiration of time allowed for amendment, plaintiff must obtain leave of court to file amended pleading; compare¿Harlan v. Department of Transp.¿(2005) 132 Cal.App.4th 868, 874¿(contra)—court has discretion to accept untimely amendment¿without prior noticed motion¿by plaintiff.)

Further, Code of Civil Procedure (“CCP”), section 581(f) provides in part: “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.” Section 597 applies in limited scenarios that involve special defenses that do not relate to the merits of the underlying action, e.g., defense of statute of limitations.

The statutory phrase “may dismiss” unambiguously grants discretionary authority to trial courts. (Cano v. Glover¿(2006) 143 Cal.App.4th 326, 329; see¿In re Marriage of Hokanson¿(1998) 68 Cal.App.4th 987, 993 [well-established rule of statutory construction states “may” connotes discretionary action].)

B. Discussion

Pursuant to Code of Civil Procedure section 581(f)(2), “[t]he 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.” Here, this Court, on January 2, 2024, this Court sustained Defendant Ortiz’s Demurrer. Further, this Court granted twenty (20) days leave to amend, making the amended Complaint due by January 22, 2024.

Defendant Ortiz contends that Plaintiff has not filed an amended complaint as of the filing of the motion to dismiss on February 26, 2024. However, this Court notes that on January 22, 2024, the Court received a filing of the First Amended Complaint. The First Amended Complaint is labeled in eCourt as “Declaration – 1st Amended Complaint,” and is not on typical pleading paper, lacks a caption, and is not signed or verified. The Declaration also lacks an address, phone number and e-mail address for the filing party, so it perhaps should not have been accepted for filing by the Clerk’s office. The Court also assumes, due to the moving papers in Defendant Ortiz’s motion, that the supposed First Amended Complaint was not served on Defendants. There is no proof of service attached to the First Amended Complaint, nor is there one filed with this Court. The moving papers do not mention seeing this filing at all, and does not provide an argument for why this Court should not take this good faith attempt at a filing by the due date to count as one.

Here, the Court requests oral argument from both parties on why it should dismiss Plaintiff’s entire case, even though Plaintiff apparently made a good faith, although procedurally incorrect, attempt at filing the First Amended Complaint by January 22, 2024. Pursuant to both the Code of Civil Procedure as well as the California Rules of Court, this Court is vested with discretion to determine whether an entire case should be dismissed. Here, because of Plaintiff’s attempt at filing the First Amended Complaint by January 22, 2024, this Court is tentatively inclined to DENY the Motion to Dismiss as such an act seems extreme. The parties will be permitted to present oral argument on whether Plaintiff can file a code-compliant amended complaint in lieu of the January 22, 2024 attempt. Further, the Court will discuss the possibility of having defense counsel provide any updated address information counsel may have for the Plaintiff.