Motion to Dismiss Complaint
23CV007493: ROMANISHIN vs ROMANISHIN 05/07/2024 Hearing on Motion to Dismiss Complaint in Department 54
Tentative Ruling
Defendant Michael Romanishins (Defendant) motion to dismiss for failure to amend the Complaint pursuant to Code of Civil Procedure section 581(f)(2) is DENIED.
Defendant failed to file and serve a memorandum of points the authorities with the motion as required by California Rules of Court, rule 3.1112(a)(3). (See also CRC rule 3.1114(a) (listing 'civil motions, applications and petitions filed on Judicial Council forms that do not require a memorandum').) Defendant has only filed a notice of motion and a supporting declaration.
The Court could deny the motion without prejudice based on the foregoing, but elects to rule on the merits.
Pursuant to Code of Civil Procedure section 581(f)(2), where a demurrer has been sustained with leave to amend and the plaintiff fails to amend within the time allotted by the court, the court may dismiss the complaint where either party moves for dismissal. Dismissal is with prejudice. Section 581(f)(2) 'gives the defendant the right to obtain a court order dismissing the action with prejudice once the court sustains a demurrer with leave to amend and the plaintiff has not amended within the time given.' (Parsons v. Umansky (1994) 28 Cal.App.4th 867, 870.)
Here, on January 17, 2024, the Court sustained Defendants unopposed demurrer to the Complaint with leave to amend and gave plaintiff Ludmila Romanishin (Plaintiff) until February 17, 2024, to file a First Amended Complaint. Plaintiff did not file the Amended Complaint until February 20, 2024. Although Plaintiff failed to amend the complaint within the time allowed, the Court in its discretion declines to dismiss the Complaint because the Court is not persuaded the late filing has caused any prejudice to Defendant. Accordingly, the motion to dismiss is DENIED.
The minute order is effective immediately. No formal order pursuant to California Rules of Court, Rule 3.1312
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23CV007493: ROMANISHIN vs ROMANISHIN 05/07/2024 Hearing on Motion to Dismiss Complaint in Department 54
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