2013-00151145-CU-OR

Beverly Taylor vs. Bank of America NA

Nature of Proceeding:  Motion to Dismiss

Filed By: Gaddis, Clayton

Defendant Bank of America, N.A.’s motion to dismiss is denied.

Defendant moves to dismiss the action pursuant to CCP § 581(f)(2) which provides
that when the court sustains a demurrer with leave to amend, a court may dismiss the
action if the plaintiff fails to amend within the time allowed by the court and either party
moves for dismissal.  Defendant’s demurrer was sustained with leave to amend on
May 9, 2014, and Plaintiff was given until Monday, May 19, 2014 to file and serve an
amended complaint.  Plaintiff ultimately filed and served the amended complaint on
May 22, 2014.  The instant motion was filed on May 23, 2014.  Plaintiff asserts in her
moving papers that the brief delay was the result of a calendaring error, though there                is no declaration to support such claim.

The motion is denied.  CCP § 581(f)(2) provides that the Court may dismiss an action
where a party fails to timely amend after a ruling on a demurrer.  Importantly, dismissal
th
is discretionary.  (Harlan v. Dep’t of Transportation (2005) 132 Cal.App.4   868, 874
[“But section 581, subdivision (f)(2), places the decision within the court’s discretion”].)
Indeed, the Court has the discretion to accept an untimely amendment even without a
prior noticed motion.  (Id.)  Under the circumstances, the Court exercises its discretion
to deny the motion to dismiss based upon the fact that the amended complaint was
filed on May 22, 2014, a few days after the May 19, 2014 deadline, even despite the
lack of a declaration explaining the delay.  Granting the motion based on the very brief
delay in filing the amended complaint would result in a tremendous windfall to the
Defendant and would be inappropriate.  The motion to dismiss is denied.

In the alternative, Defendant moves to strike the amended complaint on the basis that
Plaintiff lost the ability to amend without Court approval after the May 19, 2014,
deadline.  As stated above, the Court retains the discretion to accept an untimely
amendment even without a prior noticed motion, particularly where the delay in filing is
th
“brief and inconsequential”.  (Harlan, supra, 132 Cal.App.4   at 872, 874.)  The Court
exercises its discretion to do so here.

The motion is denied in its entirety.

Given the above, the Court need not reach Plaintiff’s procedural arguments raised in
opposition.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.