ALEXANDER XUE VS. COSTCO WHOLESALE CORPORATION

“A trial court’s determinations to deny leave to file a belated amended pleading under section 473, subdivision (a)(1), to strike a pleading under section 436, and to dismiss an action under section 581, subdivision (f)(2)” are discretionary decisions. (Id. at 612).

Here, there is no question that Plaintiff filed his SAC late, on April 7, 2026, roughly one month after the deadline set by the Court. Plaintiff did not seek further leave from the Court prior to filing the amended complaint or after. Plaintiff has not opposed Defendant’s motion to strike the SAC or Defendant’s demurrer to the SAC. Defendant has moved for an order striking the late-filed amended pleading via a noticed motion, as required under Cal. Rules of Court, rule 3.1320(i).

It is of note that on July 15, 2026 (long after his opposition was due) Plaintiff did appear ex parte seeking leave to file a Third Amended Complaint and claimed that his delay in filing the Second Amended Complaint was due to some sort of computer failure sometime in March. The Court denied ex parte relief. Plaintiff also filed an extremely untimely opposition to this motion (also on July 15, 2026). The

July 26, 2026 LAW AND MOTION CALENDAR PAGE 6 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ Court need not consider and exercises its discretion not to consider that untimely opposition. Rule 3.1300 of the California Rules of Court. The same rules apply to Plaintiff despite his pro per status. Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 984–85 (“[M]ere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation.”).

It is notable that this motion is the result of the Plaintiff’s failure to timely comply with the Court’s Order setting a deadline on amendment and that the Plaintiff failed to file his papers in a timely fashion in relation to the demurrer that immediately preceded this motion (filing his papers nine days late and shortly before the hearing despite having months to prepare them). With that history in mind, Plaintiff’s excuses for not filing a timely opposition and claim that the delay in filing his Second Amended Complaint was due to some unspecific computer error are not worthy of credit. Plaintiff now has a demonstrated pattern of acting as if the rules do not apply to him.

Defendant’s motion to strike Plaintiff’s untimely SAC is GRANTED. Accordingly, Defendant’s demurrer is deemed MOOT.

Defendant has further moved for dismissal of this action. “The court may dismiss a complaint as to that defendant where. . . after 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.” (Code Civ. Proc., § 581, subd. (f)(2).)

A defendant may simultaneously move to strike the pleading and dismiss the action; there is “[n]o reason . . . to require that additional time and expense be incurred in filing a separate motion to dismiss after the court has ordered the amended complaint stricken.” (Leader, 89 Cal.App.4th at 614.)

Accordingly, Defendant’s motion to dismiss this action is GRANTED, with prejudice. In exercising its discretion the Court has considered the length of the delay in filing the SAC (it was approximately a month (a meaningful delay), however Plaintiff actually had significantly more time than the Court intended because there was a one month delay between the hearing on the demurrer (which Plaintiff attended) and the entry of the Order); the Plaintiff’s conduct (which as described above was not reasonable); the excuse for the delay (which the court does not credit); the prejudice to the defendant (which is meaningful as the case is more than two years old and Plaintiff’s conduct has resulted in unnecessary motion practice); and the stage of the litigation (this is a simple case involving plaintiff’s challenge to Defendant’s return policy and a $10 alcohol purchase three years ago that is still not at issue after more than two years).

Any party who contests a tentative ruling must email Dept.11@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for the prevailing party shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to California Rules of Court, rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the California Rules of Court. Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be efiled only, do not email or mail a hard copy to the Court. If the tentative is adopted the prevailing party shall also prepare a Judgment.

July 26, 2026 LAW AND MOTION CALENDAR PAGE 7 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________

July 26, 2026 LAW AND MOTION CALENDAR PAGE 8 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________

02:00 PM 24-CIV-02662 ALEXANDER XUE VS. COSTCO WHOLESALE CORPORATION LINE 3

ALEXANDER XUE PRO PER COSTCO WHOLESALE CORPORATION ALECIA E. COTTON

DEFENDANT COSTCO WHOLESALE CORPORATION’S DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT

TENTATIVE RULING:

Please refer to the tentative ruling for Line 2, which is hereby incorporated by reference and serves as the tentative ruling for Line 3.