Judge: Serena R. Murillo, Case: 21STCV40615, Date: 2022-10-31 Tentative Ruling

Case Number: 21STCV40615    Hearing Date: October 31, 2022    Dept: 29

Juan Perez Rojas, et al. v. California Department of Transportation, et al.

Motion to Dismiss filed by Defendant California Department of Transportation

TENTATIVE

Defendant California Department of Transportation’s motion to dismiss is DENIED.

Legal Standard

Code of Civil Procedure section 581, subdivision (f)(2) enables a court to dismiss a complaint as to a defendant after a demurrer is sustained with leave to amend, the plaintiff fails to timely amend it, and either party moves for dismissal.  A dismissal pursuant to California Code of Civil Procedure section 581, subdivision (f)(2) is with prejudice.  (See Parsons v. Umansky (1994) 28 Cal.App.4th 867, 870 [citing Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 789, 789].) The California Supreme Court has interpreted section 581 as “...not deny[ing] a plaintiff his day in court.  It simply requires that he frame his allegations in order to state a cause of action; and if a plaintiff is unable to do so after an adequate and reasonable opportunity is afforded, he must proceed to review of such legal determination by appeal, rather than seek another trial forum in which to reassert the same claims.”  (Wells, supra, 29 Cal.3d at p. 789.) 

Discussion

Defendant asks the Court to dismiss the complaint because Plaintiff failed to timely amend the complaint after the Court sustained Defendant’s demurrer. 

Plaintiff argues in opposition that it submitted its FAC for filing on July 12, 2022, and the FAC was confirmed to be “Electronically Received” by the Court on July 12, 2022 at 10:03 a.m. (Herrera Decl., Ex. 2.) Plaintiffs’ counsel presumed that the FAC was indeed filed on that date and that a conformed copy of the FAC would follow shortly. (Id., ¶ 10.) On August 26, 2022, plaintiff’s counsel elected to re-file and re-serve the FAC (and guardian ad litem forms) in hopes that it would resolve the issue. (Id, ¶ 17.) The re-filed FAC was confirmed to be “Electronically Received” by the court on August 26, 2022. (Id., Ex. 6.) Plaintiffs’ counsel again presumed that the court would simply need some time to process the filing of the FAC. (Id., ¶ 18.)

As Plaintiffs have shown diligence in prosecuting this action, the Court declines to dismiss this action pursuant to CCP section 581(f)(2).

Conclusion

Accordingly, Defendant’s motion to dismiss is DENIED.

Defendant is ordered to give notice.