Judge: Salvatore Sirna, Case: 21PSCV00617, Date: 2023-02-24 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 21PSCV00617    Hearing Date: February 24, 2023    Dept: G

Defendants Fleet Capital, Inc. and Inco Builders’ Application for Dismissal Due to Failure to Timely File Amended Complaint

Respondent: Plaintiff Diana Culkin

TENTATIVE RULING

Defendants Fleet Capital, Inc. and Inco Builders’ Application for Dismissal Due to Failure to Timely File Amended Complaint is DENIED. Plaintiff’s Second Amended Complaint received January 30, 2023 is deemed filed as of this date.

BACKGROUND

This action arises from an alleged wrongful foreclosure.

On July 30, 2021, Plaintiff Diana Culkin, also known as Diana Jannette Marmolejo Corona, filed a complaint against Fleet Capital, Inc. (Fleet Capital), Best Alliance Foreclosure and Lien Services Corp. (Best Alliance), Inco Builders (Inco), and Does 1-25, alleging the following causes of action: (1) violation of California's non judicial foreclosure statutes, (2) wrongful foreclosure, (3) conversion, (4) unfair business practices, and (5) declaratory relief.

On February 9, 2022, Inco filed a cross-complaint against Plaintiff, Michael Culkin, and Roes 1-10, alleging the following causes of action: (1) trespass and (2) slander of title.

On February 23, 2022, Fleet Capital and Inco filed a motion for judgment on the pleadings as to Plaintiff’s complaint. On August 4, the court granted the motion with leave to amend.

On October 7, 2022, Plaintiff filed a First Amended Complaint (FAC) against the same defendants as well as Sam Ostayan (Ostayan), alleging the following causes of action: (1) violation of California's nonjudicial foreclosure statutes, (2) wrongful foreclosure, (3) quiet title, (4) unfair business practices, and (5) declaratory relief. On December 6, Fleet Capital, Inco, and Ostayan demurred to Plaintiff’s FAC. On January 5, 2023, the court sustained the demurrer with 20 days leave to amend.

On January 30, 2023, Fleet Capital and Inco (collectively, Defendants) filed an ex parte application for dismissal due to failure to timely file amended complaint. On the same day, Plaintiff submitted a Second Amended Complaint (SAC) that was received but not filed. On January 31, the court denied Defendants’ ex parte application and designated the application as a noticed motion.

A hearing on the motion and case management conference are set for February 24, 2023, with a hearing on a demurrer set for March 9.

REQUESTS FOR JUDICIAL NOTICE

Defendants’ requests for judicial notice of prior filings and rulings in this action are GRANTED.

ANALYSIS

Defendants move for dismissal of Plaintiff’s action on the grounds that Plaintiff failed to timely file a SAC. For the following reasons, the court DENIES Defendants’ motion.

Legal Standard

Pursuant to Code of Civil Procedure section 581, subdivision (f)(2), the court may dismiss the complaint when, “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).)  If a plaintiff fails to amend after the court has sustained a demurrer, the court may construe the failure to amend as an admission that the plaintiff cannot cure the defects that the court identified and dismiss the plaintiff’s complaint with prejudice.  (Cano v. Glover (2006) 143 Cal.App.4th 326, 330.) 

Discussion

On January 5, 2023, the court sustained Defendants’ demurrer to Plaintiffs’ FAC with twenty (20) days leave to amend. However, Plaintiff neglected to file a SAC until January 30, 2023, five (5) days after the amended complaint was due. While Plaintiff requests mandatory relief from an anticipated dismissal pursuant to Code of Civil Procedure section 473, subdivision (b), mandatory relief is not available prior to the entry of a dismissal. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 616.)

In evaluating the totality of the circumstances, the court elects to exercise its discretion deny Defendants’ request for dismissal for Plaintiff’s failure to file a timely an amended complaint.

In a declaration opposing Defendants’ motion, Plaintiff’s counsel admits fault for submitting an untimely SAC. (Orloff Decl., ¶ 4.) Plaintiff’s counsel claims counsel became ill on January 24, 2023, with a stomach flu. (Orloff Decl., ¶ 3.) While counsel originally hoped counsel’s condition would improve the next day on January 25 in time for counsel to file the SAC, counsel remained ill throughout the weekend and was unable to timely submit the SAC. (Orloff Decl., ¶ 3.)

In exercising its discretion, the court finds the declaration submitted by Plaintiff’s counsel to be excusable neglect.  The finds it appropriate under the circumstances to permit the untimely filing of Plaintiffs’ SAC due to the unexpected illness of Plaintiff’s counsel, the lack of any significant delay or prejudice to Defendants, and the well-established judicial policy of resolving cases on their merits. (Estrada v. Royalty Carpet Mills, Inc. (2022) 76 Cal.App.5th 685, 715 [“[C]ourts should keep in mind our state's strong policy of deciding cases on their merits.”].)

Accordingly, Defendants’ motion is DENIED.

CONCLUSION

Based on the foregoing, the court DENIES Defendants’ application for dismissal and deems Plaintiff’s untimely Second Amended Complaint received January 30, 2023, filed as of this date.