Judge Walter P. Schwarm, Case 21STCP00443 2022-08-30 Tentative Ruling

Judge: Walter P. Schwarm, Case: 21STCP00443, Date: 2022-08-30 Tentative Ruling

Respondent’s (Commission on Judicial Performance) Ex Parte Application for Order of Dismissal Following Court Order Sustaining Demurrer With Leave to Amend for Failure to Amend Within Time Permitted (Application), filed on 7-22-22 under ROA No. 220, is DENIED.

The Application seeks dismissal pursuant to Code of Civil Procedure section 581, subdivision (f)(2). (Application; 3:9-17.) Code of Civil Procedure section 581, subdivision (f), states, “The court may dismiss the complaint as to that defendant when: [¶] (1) Except where Section 597 applies, after a demurrer to the complaint is sustained without leave to amend and either party moves for dismissal. [¶] (2) (2) Except 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.”

Nuño v. California State University Bakersfield (2020) 47 Cal.App.5th 799, 807 (Nuño), states, “The statutory phrase ‘may dismiss’ unambiguously grants discretionary authority to trial courts. (Cano v. Glover (2006) 143 Cal.App.4th 326, 329, 48 Cal.Rptr.3d 871; see In re Marriage of Hokanson (1998) 68 Cal.App.4th 987, 993, 80 Cal.Rptr.2d 699 [well-established rule of statutory construction states ‘may’ connotes discretionary action].) The parties agree that dismissals under subdivision (f)(2) of section 581 are discretionary and further agree that the appropriate standard of appellate review is the abuse of discretion standard. These points of agreement are based on a correct interpretation of the law” (Footnote 3 omitted.)

Petitioner’s (Shahrouz Jahanshahi) Opposition to Ex Parte Application (Opposition), filed on 8-5-22 under ROA No. 232, states, “Petitioner candidly admits that CJP’s ex parte application states the facts and is meritorious. However, petitioner was prevented from amending the petition due to illness.” (Opposition; 3:17-20.) The declaration in support of the Opposition states, submits a declaration that states, “2. I could not find the mental nor physical capacity to amend the petition for writ of mandate as ordered by the Court since my family and I were all infected by COVID-19 virus and I am still recovering from its side effects. [¶] 3. My failure to amend the petition was due to my illness and excusable with no intention to disobey the Court order. [¶] 4. My intention was and is to amend the petition and plead the essential facts showing that CJP’s rules are unconstitutional. [¶] 5. I will be able to amend the petition if the Court allows me and provides me the opportunity to do so within the next 90 days as I am overwhelmed at this time due to the other pending actions arising from the Rael Parties in Interest’s erroneous rulings.”

Respondent’s Reply in Support of Application to Dismiss for Failure to Amend (Reply), filed on 8-22-22 under ROA No. 236, contends, “What is unexplained is what prevented him from taking any action to notify the court of his inability to timely amend or to request additional time. It was not until the deadline had long passed that he indicated he had been ill, and even then only after respondent initiated contact and inquired whether he intended to amend.” (Reply; 2:7-10.)

Here, on 4-5-22, the court sustained Respondent’s Demurrer to First Amended Petition for Writ of Mandate, filed on 11-4-21 under ROA No. 136, with 15-days leave to amend from the date of service of the notice of the court’s ruling. (4-5-22 Minute Order.) The parties do not dispute that Petitioner did not file an amended petition within 15 days from the date of service of the court’s 4-5-22 ruling. Thus, the action is eligible for dismissal pursuant to Code of Civil Procedure section 581, subdivision (f)(2). The court, however, exercises its discretion and finds that dismissal is not appropriate at this stage of the proceedings. Although Petitioner’s declaration is vague in terms of Petitioner’s failure to request an extension from the court due to Petitioner’s illness, Petitioner’s declaration regarding Petitioner’s illness is sufficient to prevent dismissal for failure to timely file an amended pleading. In exercising this discretion, the court denies Petitioner’s request of an additional 90 day to file an amended petition because Petitioner had had approximate four months to file an amended petition. Petitioner has had sufficient time to draft an amended petition based on the length of time from the court’s 4-5-22 ruling.

Therefore, the court DENIES Respondent’s (Commission on Judicial Performance) Ex Parte Application for Order of Dismissal Following Court Order Sustaining Demurrer With Leave to Amend for Failure to Amend Within Time Permitted filed on 7-22-22 under ROA No. 220. If Petitioner chooses to file an amended pleading, the court ORDERS Petitioner to file the amended pleading no later than 9-9-22. The court cautions Petitioner that failure to file an amended petition no later than 9-9-22 may result in dismissal of this action pursuant to Code of Civil Procedure section 581, subdivision (f)(2), or other legal authority.

Respondent is to give notice.