2016-00201894-CU-PO

Susan Oliver vs. Sy Arden Way, LLC

Nature of Proceeding: Motion to Dismiss Plaintiff’s Complaint

Filed By: Reusch, Mark S.

Defendants’ motion to dismiss this action due to plaintiffs’ failure to timely file and serve an amended complaint following the Court’s 10/31/2017 order is DENIED, as follows.

Factual Background

This is a wrongful death action arising from the death of Sacramento County Sheriff’s Deputy Danny Oliver from a gunshot while on the moving defendants’ premises in Sacramento. Moving defendants previously demurred to the complaint but as a result of the required meet-and-confer process, plaintiffs volunteered to amend their complaint prior to the Court’s ruling. Pursuant to the Court’s 10/31/2017 order, the demurrer was dropped as moot and the amended complaint was to be filed by 11/13/2017.

Defendants now seek dismissal of this action against them on the ground that plaintiffs have failed to amend their complaint at all, much less by the 11/13/2017 deadline specified in the 10/31/2017 order.

Plaintiffs oppose dismissal, claiming an “inadvertent mistake” by their counsel and request another opportunity to file the amended complaint.

In their reply, moving defendants contend that plaintiffs may not seek leave to file the amended complaint by way of their opposition but must instead file a noticed motion for such relief and that this Court lacks discretion to extend here the time for plaintiffs to file an amended complaint in the absence of a noticed motion for such relief.

Additionally, the reply maintains that mandatory relief for attorney mistake is not available under the circumstances here and that plaintiffs have not made the showing needed for discretionary relief either. Finally, defendants insist the proposed amended complaint fails to cure the defects from which the original complaint suffered (i.e., barred by the “Firefighters’ Rule”).

Analysis

Although troubled by plaintiffs’ failure to file and serve the amended complaint within the time previously allotted, the Court is not inclined to dismiss this action at this time since such a dismissal would deprive plaintiffs of the opportunity to prosecute this action on the merits and would provide an unjustified windfall to defendants.

Moreover, the authorities cited in the reply do not persuade this Court that in the absence of a noticed motion by plaintiffs, it lacks discretion to extend the time to file their amended complaint. It is true that the Second District Court of Appeal in Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603 affirmed the dismissal of an action due to the plaintiffs’ failure to timely amend following the sustaining of a

demurrer and also stated that the plaintiffs were required to file a noticed motion to obtain permission to file a tardy complaint (Id., at 613) but the latter statement was subsequently rejected by the Fifth District Court of Appeal in Harlan v. Department of Transportation (2005) 132 Cal.App.4th 868, the other authority cited in defendants’ reply.

Following the trial in Harlan, both the plaintiff and the defendant appealed. The latter argued the former’s operative second amended complaint was not timely filed following the sustaining of a demurrer and the trial court erroneously denied the defendant’s motion to strike the untimely complaint, relying in part on Leader’s statement that a noticed motion was required to file an amended complaint beyond the deadline imposed by the court in sustaining the demurrer. The Fifth District declined to follow the Second District’s proposition primarily because it is not actually supported by the authority which was cited in Leader (i.e., Loser v. E. R. Bacon Co. (1962) 201 Cal.App.2d 387; Code Civ. Proc. §473(a)(1)). (Harlan, at 874.) In particular, the Fifth District explained that Loser merely held that a plaintiff has no right to amend as a matter of course after the defendant answers and must therefore request leave, a rule which had no application in Leader or Harlan. Regardless, in Harlan, the Court of Appeal provided several additional reasons why the defendant’s contention that the trial court was “powerless to alter the filing deadline without a noticed motion by [the plaintiff]” was unfounded, including but not limited to Code of Civil Procedure §475 [requiring court to disregard any error or defect which “does not affect the substantial rights of the parties”], and §581(f)(2) [court may dismiss the complaint when not timely amended following sustaining of demurrer] and §472a(c) [when demurrer is sustained, court “shall fix the time within which the amendment or amended pleading shall be filed”].

In light of the foregoing, defendants’ suggestion that this Court lacks discretion to extent plaintiffs’ time to amend must be rejected and if not already filed, plaintiffs shall file and serve their amended complaint no later than 1/19/2018. Although not required by court rule or statute, plaintiffs are directed to present a copy of this order when the amended complaint is presented for filing.

Moving defendants to respond within 30 days if the amended complaint is personally served, 35 days if served by mail.

If any defendant intends to demur to the amended complaint or move to strike, it shall determine if any other defendant who has appeared in this action also intends to demur or move to strike. If so, all such defendants shall coordinate a single hearing date for the demurrers and motions to strike. Additionally, a copy of the amended complaint shall be included with the moving papers.