Judge Stephen Morgan, Case Number: 23AVCV00066, Date: 2023-07-11 Tentative Ruling

This is an action stemming from the lease of real property located at 46645 60th St. West, Lancaster, CA 93536 (“the Property”). Plaintiff Leilani L. Antoine (“Plaintiff”) alleges that Defendants Charles E. Mosman (“Charles”[1]); Sandra Mosman (“Sandra”); Mosman’s Country Steakhouse & Bar, Zubie Enterprises, Inc. (“Zubie Enterprises”); and Charles E. Mosman DBA Mosman’s Town & Country Carpet & Construction (“Mosman’s Town & Country Carpet & Construction” and collectively “Defendants”) are former commercial tenants of hers. Plaintiff further alleges damages stemming from their time as her tenants.

On January 18, 2023, Plaintiff filed her Complaint alleging once cause of action for General Negligence and four causes of action labelled “Intentional Tort.”

On February 24, 2023, Defendants filed their Demurrer with Motion to Strike to the Complaint, subsequently sustained with leave to amend.

On April 27, 2023, Plaintiff filed her First Amended Complaint (“FAC”) alleging causes of action for General Negligence and Intentional Tort (four cases of action with this label). Plaintiff also wrote in, but not did not provide an attachment, for a cause of action under Cal. Pen. Code § 496(c).

On May 30, 2023, Defendants filed their Demurrer with Motion to Strike to the FAC, subsequently sustained with leave to amend.

On August 10, 2023, Plaintiff filed an Ex Parte Application for Leave to File a Second Amended Complaint (“SAC”). The Ex Parte Application for Leave to File a SAC requested leave to include a sixth cause of action for battery against Charles and a seventh cause of action against all defendants for intentional interference with prospective economic advantage. The matter was continued to August 14, 2023 as Department A-14 was dark on August 11, 2023. On August 14, 2023, the Court denied the Ex Parte Application for Leave to File a SAC as no exigent circumstances existed to hear it on an ex parte basis. The matter was scheduled for regular hearing on September 19, 2023.

On August 16, 2023, Plaintiff filed a substitution of attorney, substituting William Garrett Cothran as counsel.

On September 19, 2023, the following were held by the Court: (1) an Informal Discovery Conference (“IDC”), (2) the hearing on the Leave to File a Second Amended Complaint, (3) a Case Management Conference (“CMC”), and (4) an Order to Show Cause (“OSC”) RE: Dismissal. The Court denied Defendant’s oral motion to dismiss without prejudice and advised that a noticed motion may be filed. The OSC RE: Dismissal and hearing on the Leave to File a Second Amended Complaint were taken off calendar. The CMC was continued to January 12, 2024.

No Opposition has been filed. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . .before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) “Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section.” (Ibid.) The hearing is set for October 31, 2023. Accordingly, an Opposition was due October 18, 2023. Should an Opposition be filed, it is now untimely.

Standard for Dismissal – Cal. Code Civ. Proc. § 581 provides in relevant part that “[t]he court¿may dismiss the complaint as to that defendant when…[e]xcept 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.” (Cal. Code Civ. Proc. §581(f)(2).)¿The decision to dismiss an action under Cal. Code Civ. Proc. §581(f)(2) rests in the sound discretion of the trial court and a reviewing court does not disturb the ruling unless the trial court abuses its discretion. (Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, 827.)¿

Courts have held that a dismissal under Cal. Code Civ. Proc. §581(f)(2) is necessarily with prejudice. (Cano v. Glover¿(2006) 143¿Cal.App.4th 326, 329.) Courts have also held that a dismissal under Cal. Code Civ. Proc. §581(f)(2) is discretionary due to the phrasing of the statute. (Id., See Cal. Code Civ. Proc. §581(f)(2) [“may dismiss”].)¿¿

Application – Defendants reiterate the procedural background regarding the previous demurrers in this case. Defendant presents that the Court’s July 11 Order granted Plaintiff leave to amend and instructed her to file the second amended complaint within 30 days, or by August 10, 2023, Plaintiff failed to do so, and there is currently no operative complaint within this case. Defendant argues that since Plaintiff has failed to file her second amended complaint, it should be considered strong evidence that her claims against Defendants remain insufficient, and that she is no longer eager to litigate her case against them. Further Defendant’s present that the Court reserved a hearing date for September 19, 2023 for a regularly scheduled motion regarding leave to amend and the Court had to take the hearing off calendar as no motion was filed. Defendants conclude that Plaintiff’s right to file the second amended complaint has expired; there is no operative complaint on file with the Court; or even a slight indication that one is forthcoming; and, as such, dismissal with prejudice of the entire action pursuant to Cal. Code Civ. Proc. § 581(f)(2)is appropriate.

The order regarding the July 11, 2023 hearing on the Demurrer to the FAC with Motion to Strike reads:

Defendants Charles E. Mosman; Sandra Mosman; Mosman’s Country Steakhouse & Bar, Zubie Enterprises, Inc.; and Charles E. Mosman DBA Mosman’s Town & Country Carpet & Construction’s Demurrer is SUSTAINED with leave to amend. Plaintiff is to file an amended Complaint within 30 days of this Court Order.

30 days from July 11, 2023 is August 10, 2023. Plaintiff, instead of filing a SAC, filed the Ex Parte Application for Leave to File a SAC to be heard on August 11, 2023. Plaintiff appeared to each subsequent hearing, including those after the substitution of attorney was filed. At the September 19, 2023 hearing, which included (1) an Informal Discovery Conference (“IDC”), (2) the hearing on the Leave to File a Second Amended Complaint, (3) a Case Management Conference (“CMC”), and (4) an Order to Show Cause (“OSC”) RE: Dismissal, William Garrett Cothran (“Cothran”) for Richard Alvarez Loa appeared on behalf of Plaintiff. Following this, no action has been taken on behalf of Plaintiff.

As it stands, it is now over two months since the Cout’s deadline for the amended pleading has passed. With the exception of the appearance of Cothran at the September 19, 2023 hearing, no action has been taken on Plaintiff’s behalf. Plaintiff has not opposed this motion.

[1] Defendants Charles Mosman and Sandra Mosman share the same surname. The Court refers to each individually by their first name for the purpose of clarity. No disrespect is meant.