Judge Thomas D. Long, Case 22STCV07543 2023-04-11 Tentative Ruling

On February 9, 2023, the Court denied Plaintiff’s motion for leave to amend the complaint, finding that the proposed amended complaint contained no facts constituting any causes of action, so it would be subject to a demurrer or the Court’s striking of it under Code of Civil Procedure section 436, subdivision (b). However, the Court also sustained Defendant Dental Office’s demurrer with 20 days’ leave to amend.

Plaintiff did not timely file an amended complaint following the demurrer, so on March 16, 2023, Defendant Dental Office was dismissed with prejudice.

On March 23, 2023, the Court denied Plaintiff’s ex parte application to set aside Defendant Dental Office’s dismissal and for leave to file a first amended complaint.

On March 24, 2023, Plaintiff filed a motion to set aside Defendant Dental Office’s dismissal and for leave to file a first amended complaint.

Plaintiff noticed a hearing date of April 11, 2023, only eleven court days after the motion was filed and served. Plaintiff was required to file and serve this motion at least sixteen court days before the hearing. (Code Civ. Proc., § 1005, subd. (b).) This is not the first time that Plaintiff has improperly scheduled and noticed a hearing: Plaintiff previously filed a motion for summary judgment on December 28, 2022, noticing a February 9, 2023 hearing, only 43 days later. (See Code Civ. Proc., § 437c, subd. (a)(2) [motions for summary judgment must be filed and served at least 75 days before the hearing].)

Additionally, under the Court’s First Amended General Order for electronic filing, the table of contents and all attachments, including exhibits, must be bookmarked. (General Order No. 2019-GEN-014-00, at ¶¶ 6(b)-(d); California Rules of Court, rule 3.1110(f)(4).) Each accompanying document must be filed as a separate document. (General Order No. 2019-GEN-014-00, at ¶ 6(f).) Plaintiff’s motion does not comply with these requirements. Plaintiff’s single document consists of the motion, his declaration, and exhibits. The document also does not contain proper bookmarks, making it difficult to navigate the combined 154 pages of the motion, declaration, exhibits, and exhibits to exhibits.

Although Plaintiff is representing himself without counsel, “his status as a party appearing in propria persona does not provide a basis for preferential consideration. A party proceeding in propria persona ‘is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.’ [Citation.] Indeed, ‘“the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.”’ [Citation.]” (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.)

Plaintiff’s future filings, if any, must comply with the statutory and court rules. If Plaintiff continues to file non-compliant motions, the Court may strike them or issue sanctions.

Defendant Dental Office argues that this motion is a non-compliant motion for reconsideration after the Court’s February 9, 2023 denial of Plaintiff’s motion for leave to amend and March 23, 2023 denial of Plaintiff’s ex parte application to set aside dismissal. (Opposition at pp. 2-4.)

The proposed amended complaint here is different from the one presented with Plaintiff’s prior motion for leave to amend. Accordingly, he is not seeking reconsideration of the Court’s denial of leave to file the same amendment.

Additionally, at the hearing on Plaintiff’s ex parte application, the Court noted that there was no reason to bring the request on an ex parte basis rather than as a noticed motion. The Court denied the ex parte application on this basis, without addressing the merits of the request. Plaintiff is now proceeding with a noticed motion, as directed.

C. Plaintiff Has Not Shown Grounds to Set Aside the Dismissal of Defendant Dental Office.

The Court may relieve a party or counsel from a judgment, dismissal, or order resulting from mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b).) The application for relief must be made within a reasonable time, not to exceed six months, after the judgment, dismissal, or order. (Ibid.)

Plaintiff timely filed this motion only one day after the dismissal of Defendant Dental Office. However, Plaintiff has not shown that his failure to timely amend his complaint following demurrer was due to his mistake, inadvertence, surprise, or excusable neglect.

On February 9, 2023, the Court granted Plaintiff 20 days’ leave to amend. Plaintiff appeared remotely at the hearing. The Notice of Ruling was mailed on February 10, 2023. Twenty days later was March 2, 2023, but this time was extended by five days due to service of the Notice by mail. (Code Civ. Proc., § 1013, subd. (a).) Plaintiff did not file an amended complaint before the March 7, 2023 deadline.

Plaintiff’s only explanation for his failure to timely amend is, “Due to Plaintiff’s disabilities, which include but are not limited to cataracts, Plaintiff has just had the opportunity to amend his Complaint accordingly.” (Motion at p. 5; see id. at p. 10.) There is no further explanation about why Plaintiff’s cataracts and other disabilities prevented him from timely filing an amended complaint after being granted leave to do so. Plaintiff had previously attempted to amend with his unsuccessful December 27, 2022 motion for leave to amend. Plaintiff was also able to file several other documents in the time between the Court’s February 9, 2023 order granting leave and the March 7, 2023 deadline to amend: a declaration in support of summary judgment (February 14), a subpoena (February 14), a request for court reporter services (February 14), and three proofs of service (February 17 and March 1).

Plaintiff argues that Defendant Dental Office was in contempt of court for ignoring a subpoena and “[tried] to obfuscate the issues contained herein and subvert Plaintiff’s due process” by moving ex parte for dismissal. (Defendant Dental Office’s alleged failure to respond to the subpoena is the subject of an upcoming motion to enforce and compel compliance with the subpoena, and that issue will not be addressed here.) Plaintiff also explains the technical difficulties that prevented him from timely logging on to remotely appear at the March 16, 2023 hearing on Defendant Dental Office’s ex parte application for dismissal. (Motion at pp. 8-9.) However, that was already after the deadline for Plaintiff to file an amended complaint. Because Plaintiff failed to timely amend after Defendant Dental Office’s demurrer was sustained with leave to amend, dismissal of Defendant Dental Office was proper. (Code Civ. Proc., § 581, subd. (f)(2).) None of these issues are relevant to Plaintiff’s mistake, inadvertence, surprise, or excusable neglect that prevented him from timely filing an amended complaint.

The Court may, in its discretion and after notice to the adverse party, allow an amendment to any pleading. (Code Civ. Proc., § 473, subd. (a)(1).) A motion to amend a pleading must include a copy of the proposed amendment or amended pleading which must be serially numbered to differentiate it from previous pleadings or amendments and must state what allegations in the previous pleading are proposed to be deleted or added, if any, and where, by page, paragraph, and line number, the allegations are located. (California Rules of Court, rule 3.1324(a).) The motion shall also be accompanied by a declaration attesting to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier. (California Rules of Court, rule 3.1324(b).)

Plaintiff does not identify the proposed amendments, but he provides a copy of his proposed first amended complaint (“FAC”). (Carranza Decl. ¶ 12 & Ex. K.) The proposed FAC contains a single cause of action for breach of contract. Plaintiff’s declaration does not attest to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier. (See California Rules of Court, rule 3.1324(b).)

In addition to the motion being procedurally deficient, the Court finds that the proposed amendment would be improper. The Court does not ordinarily consider the validity of the proposed amended pleading when determining whether to grant leave to amend. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) Here, however, the proposed FAC contains several deficiencies, and it would be subject to the Court striking at least parts of it under Code of Civil Procedure section 436.

First, the proposed FAC is brought against both Defendant Park and Defendant Dental Office, but Defendant Dental Office has been dismissed from this action with prejudice. Plaintiff cannot file an amended complaint naming Defendant Dental Office again unless that dismissal is set aside.

Second, Plaintiff alleges a written contract “attached as Exhibit B.” (FAC ¶ 10.) Exhibit B is later described as Plaintiff’s dental records. (FAC, Carranza Decl. ¶ 2.) Upon the Court’s review of Exhibit B, the documents appear to be Plaintiff’s acknowledgement of privacy notices, contact information, prior health history, insurance information, chart progress notes, prescription, COVID-19 health screening questionnaires, informed consent form, identification cards, and insurance card. Only the final document, a Complete Treatment Plan, could be construed as the contract. The Complete Treatment Plan consists of a list of procedures and fees, and Plaintiff signed below an acknowledgment “that I am committing to finish all treatment presented on this plan. By signing I agree that any discounts or grants given to me will be voided if the entire treatment is not fully completed.” However, the Complete Treatment Plan identifies only “Cityview Dental Care” (the dba of Defendant Dental Office) as the other party, via the letterhead. Defendant Park is not an identified party to the agreement. Thus, this exhibit contradicts Plaintiff’s allegation that both Defendants entered into the written contract with him. (FAC ¶ 10.)

Accordingly, the Court finds that the proposed FAC improperly includes Defendant Dental Office and does not allege facts constituting a cause of action against Defendant Park.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court