Judge Virginia Keeny, Case 21VECV01072 2023-03-17 Tentative Ruling

Judge: Virginia Keeny, Case: 21VECV01072, Date: 2023-03-17 Tentative Ruling

Case Number: 21VECV01072 Hearing Date: March 17, 2023 Dept: W

ALEJANDRA MORENO v. MARIA ARROYO

motion to dismiss

Date of Hearing: March 17, 2023 Trial Date: None set.

Department: W Case No.: 21VECV01072

Moving Party: Defendant Maria Arroyo

Responding Party: Plaintiff Daniel Reyes

BACKGROUND

Plaintiff Alejandra Moreno alleges Defendant Morano contacted two of her relatives to let them know that Plaintiff’s son had vandalized her car. Plaintiff alleges Defendant provided video of the home surveillance, but you cannot see the face of the person throwing rocks at her car. Plaintiff further alleges that one of her relatives without investigation, confronted Plaintiff and told Plaintiff her son vandalized Defendant’s car. Plaintiff asked her son what he had done and he denied it. As a result of Defendant’s false accusations, Plaintiff alleges she has suffered economic loss and exposed Plaintiff to necessary and unfair damages.

On August 13, 2021, Plaintiff filed a complaint against Defendant for defamation. The court sustained the demurrer to the complaint and on March 25, 2022, Plaintiff filed a first amended complaint. On November 21, 2022, Plaintiff filed a second amended complaint asserting causes of action for civil harassment, emotional distress, and defamation.

On January 6, 2023, the court sustained without leave to amend Defendant’s demurrer as to Plaintiff Alejandra Moreno, but struck various allegations that related to plaintiff Moreno and Daniel Reyes. Daniel Reyes was ordered to file an amended complaint within 30 days. Reyes has not filed an amended complaint as of the date of the hearing on the motion to dismiss.

[Tentative] Ruling

Defendant Maria Arroyo’s Motion to Dismiss is GRANTED.

DISCUSSION

Defendant Maria Arroyo moves the court for an order dismissing the instant matter with prejudice based upon Plaintiff’s failure to timely file and serve a Third Amended Complaint within the deadline imposed by the Court following Defendant’s successful demurrer and motion to strike.

Code of Civil Procedure section 581(f)(2) provides, as follows: “The court may dismiss the complaint as to that defendant 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.” Moreover, “Section 581, subdivision (f)(2) ‘... gives the defendant the right to obtain a court order dismissing the action with prejudice once the court sustains a demurrer with leave to amend and the plaintiff has not amended within the time given.’” (Cano v. Glover (2006) 143 Cal.App.4th 326, 330.) Courts have held that a dismissal under section 581, subdivision (f)(2) is necessarily with prejudice. (Cano v. Glover (2006) 143 Cal.App.4th 326, 329–330; see Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 785 [defendant was entitled to dismissal with prejudice when trial court sustained demurrer and plaintiff failed to amend]; Kruss v. Booth (2010) 185 Cal.App.4th 699, 713, fn. 14 [noting the Cano opinion is “largely a gloss” on § 581, subd. (f)].)

Defendant contends despite the Court’s Order on January 6, 2023 that Plaintiff Reyes file and serve their amended complaint within 30 days, Plaintiff has still not filed or served a Third Amended Complaint. Specifically, Plaintiff had until February 10, 2023 to file his TAC (the original 30 days plus 2 days for email service). According to Defendant, this is the third time which Plaintiff has failed to meet the deadline imposed by the Court and solely because of this, this matter remains not at issue after 18 months.

The court finds dismissal appropriate under Code of Civil Procedure section 581(f)(2). As noted by Defendant, the court first sustained Defendant’s demurrer to the original complaint on January 24, 2022. The court granted Plaintiff 30 days leave to amend the complaint. However, Plaintiff did not file and serve the amended complaint until two months later on March 25, 2022. Defendant again demurred to the First Amended Complaint. After taking the matter under submission, Plaintiffs were given 30 days to file and serve an amended complaint from September 21, 2022. Again, Plaintiff did not file the Second Amended Complaint until two months later on November 21, 2022 (Defendant notes they received the Second Amended Complaint November 10, 2022). Defendant demurred a third time and again, the court sustained the demurrer on January 6, 2023. This time, the court sustained the demurrer without leave to amend as to Plaintiff Arroyo. The court again gave 30 days for Plaintiff Reyes to file the amended complaint. To date, no amended complaint has been filed with the court.

In opposition, Plaintiff argues such a dismissal would be unjust and extremely prejudicial. Plaintiff, however, has failed to attach, file, or serve any amended complaint. Plaintiff specifically states they did not file one because they believe this whole matter has been unfair. Due to Plaintiff’s unwillingness to bring a new complaint, Defendant’s Motion to Dismiss is GRANTED. The court further notes that the opposition is signed by Ms. Moreno, even though she is not a party to this litigation any more and she cannot represent her son in this matter, as she is not a member of the bar. She cannot maintain an action in her son’s name.