Case Number: EC061990    Hearing Date: September 12, 2014    Dept: NCD

TENTATIVE RULING (9-12-14)
#3
EC 061990
AYALA v. LOS ANGELES DEPENDENCY LAWYERS, INC.

Motion to Dismiss Complaint

TENTATIVE:
Motion to dismiss complaint against defendants Los Angeles Dependency Lawyers, Inc., Law Office of Katherine Anderson, Katherine Anderson, Esq., Jessica Post, Esq. and Kineta Short, Esq. is GRANTED pursuant to CCP section 581 (f)(2). A demurrer to the complaint has been sustained as to the moving parties with leave to amend, plaintiff has failed to amend the complaint within the time allowed by the court, and defendants have moved for dismissal.
Dismissal of complaint against defendants Los Angeles Dependency Lawyers, Inc., Law Office of Katherine Anderson, Katherine Anderson, Esq., Jessica Post, Esq. and Kineta Short, Esq. to be entered this date.

FACTUAL AND PROCEDURAL BACKGROUND:
Plaintiff Eliseo Ayala filed this action for legal malpractice and breach of fiduciary duty against his former court appointed counsel in a dependency matter, defendants Los Angeles Dependency Lawyers, Inc., Law Office of Katherine Anderson, Katherine Anderson, Esq., Jessica Post, Esq. and Kineta Short, Esq.

On August 1, 2014, the court heard a demurrer and motion to strike brought by the named defendants to the complaint, which was sustained with 15 days leave to amend, the court order stating, “15 days leave to amend on or before August 15, 2014.”

No First Amended Complaint has yet been filed.

On August 28, 2014, defendants brought an ex parte application to dismiss the complaint which was continued for hearing to this date.

ANALYSIS:
CCP section 581 provides, in pertinent part:
“(f) The court may dismiss the complaint as to that defendant when:…
(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.”

Section 597 applies to cases decided where an answer pleads special defenses not on the merits, such as that the action is barred by the statute of limitations. The demurrer here was brought on the ground defendants did not proximately cause damages, plaintiff did not suffer any legally recoverable damages, and that the alleged wrongful acts were all protected by the tactical immunity rule, so was not based on a special defense, but involved the merits of the causes of action.

No amended pleading has been filed.

CRC Rule 3.1320(h) provides:
“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).”

CRC Rule 3.1320(i) provides
“If an amended pleading is filed after the time allowed, then an order striking the amended pleading must be obtained by noticed motion pursuant to section 1010 of the Code of Civil Procedure.”)