Case Number: EC067304 Hearing Date: June 01, 2018 Dept: A

Kopytova v Del Toro Loan Servicing

MOTION TO DISMISS PLAINTIFF’S ACTION FOR FAILURE TO AMEND COMPLAINT

Calendar: 14

Case No: EC067304

Hearing Date: 6/1/18

Action filed: 9/22/17

Trial: Not set (CMC 6/1/18)

MP: Defendant Del Toro Loan Servicing, Inc.

RP: None

ALLEGATIONS IN COMPLAINT:

This action involves commercial real property located at 7333-7341 Foothill Blvd., Tujunga, California 91042. Plaintiff Liudmyla Kopytova (“Plaintiff”) alleges that in 2017, Defendant Del Toro Loan Servicing, Inc. (“Defendant”) acquired ownership and record title of the property. (Compl., ¶5.) On July 27, 2017, Defendant and Plaintiff entered into a Real Estate Purchase Agreement (“Purchase Agreement”) whereby Plaintiff would purchase the property and acquire ownership of it through escrow. (Id., ¶6.) According to the terms of the Purchase Agreement, the total sell price was $1.3 million, Plaintiff would make a $100,000 initial down payment, and in the event of a default, Defendant, after first delivering to Plaintiff a NBP, may cancel the Purchase Agreement. (Id., ¶7, Ex. 1.) Plaintiff alleges that she made the down payment, but the payment was not received in escrow within 3 days after signing and thus Defendant unilaterally canceled the Purchase Agreement without first delivering a NBP to Plaintiff. (Id., ¶9.)

The complaint, filed September 22, 2017, alleges causes of action for: (1) breach of contract; (2) specific performance; and (3) declaratory relief.

On March 23, 2018, the Court sustained Defendant’s demurrer to the 1st, 2nd, and 3rd causes of action with 20 days leave to amend.

RELIEF REQUESTED:

Defendant moves to dismiss Plaintiff’s complaint and the entire action with prejudice due to Plaintiff’s failure to file or serve a first amended complaint (“FAC”).

DISCUSSION:

Pursuant to CCP §581(f)(2), the court may dismiss the complaint as to the 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. “A motion to dismiss the entire action and for entry of judgment after expiration of the time to amend following the sustaining of a demurrer may be made by ex parte application to the court under Code of Civil Procedure section 581(f)(2).” (Cal. Rules of Court, Rule 3.1320(h).)

On March 23, 2018, the Court sustained Defendant’s demurrer. Plaintiff had 20 days to amend the complaint. Both parties attended the March 23, 2018 and waived notice. (Defendant served Notice of the Court’s Ruling Sustaining Defendant’s Demurrer on March 23, 2018 on Plaintiff by electronic service.)

As of the filing of this motion to dismiss, Plaintiff has not filed an FAC or an opposition to this motion. Thus, the complaint may be dismissed since Defendant properly moved for such relief.

RULING:

Grant Defendant’s motion to dismiss the complaint.