SAN MATEO COUNTY HARBOR DISTRICT’S MOTION TO DISMISS
August 11, 2026 Law and Motion Calendar PAGE 15 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________
2:00 PM LINE 4 23-CIV-04076 BILLY STOKES, ET AL. VS. SAN MATEO COUNTY HARBOR DISTRICT
BILLY STOKES PRO SE SAN MATEO COUNTY HARBOR DISTRICT NICHOLAS SYREN
SAN MATEO COUNTY HARBOR DISTRICT’S MOTION TO DISMISS
TENTATIVE RULING:
Defendant San Mateo County Harbor District’s Motion to Dismiss this action is GRANTED.
Defendant’s request for judicial notice of Plaintiff’s First Amended Complaint (“FAC”) and this Court’s Order Sustaining Defendant’s Demurrer to Plaintiff’s FAC is GRANTED.
Courts have construed the failure to oppose a motion as having an abandonment of the claims. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 [“Plaintiff did not oppose the County’s [motion] to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiff to have abandoned the issue.”]; Bell v. Am. Title Ins. Co. (1991) 226 Cal.App.3d 1589, 1602 [failure to oppose a motion results in a waiver on appeal of any objection to the resulting order.].)
This Court believes, especially when the issue is one of law and the opposing party is in pro per, “that the integrity of the judicial process requires ... [the Court] to subject every motion to review before granting it.” (California Judge’s Benchbook: Civil Proceedings Before Trial § 6.22 (Thomson Reuters Mar. 2026 update).) Therefore, the Court has substantively reviewed Defendant’s motion to dismiss. However as set forth below, the Court also takes note of the failure of Defendant to file an opposition, to have filed but not properly served an amended complaint after Defendant filed the motion to dismiss, the fact that Plaintiff simply filed the amended complaint rather than seeking leave to file the untimely amended complaint, and that Plaintiff in the amended complaint fails to cure the fatal flow of the FAC by providing facts showing compliance with the required claims statutes or a reason that an exception applies.
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BACKGROUND
This Court sustained Defendant’s demurrer to Plaintiff’s FAC on April 6, 2026 on the basis that Defendant had not yet been presented with the required government tort claim. The Court granted Plaintiff leave to amend within 10 days of notice of entry of that order. (See Defendant’s RJN, Ex. B, Order Sustaining Demurrer) Defendant served Plaintiff with notice of the order by mail on April 20, 2026. (Notice of Entry of Order, filed April 20, 2026.) Because service by mail extends a party’s deadline to respond by five calendar days, Plaintiff had until May 5, 2026, to file an amended complaint. (Code Civ. Proc., § 1013 [extending deadline to respond by five days where service is made by mail].)
August 11, 2026 Law and Motion Calendar PAGE 16 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ Plaintiff failed to meet that deadline and Defendant filed this motion to dismiss on May 20, 2026. On July 22, 2026, Plaintiff filed a Second Amended Complaint (“SAC”) – 78 days after the deadline. Plaintiff did not seek leave to file the SAC after period granted for leave to amend, did not allege facts alleging compliance with the claims statutes or an applicable exception to the requirement nor did Plaintiff oppose the pending motion to dismiss.
LEGAL ANALYSIS
A court may dismiss a complaint after a demurrer is sustained with leave to amend and the plaintiff fails to amend within the court-ordered time. (Code Civ. Proc., § 581, subd. (f)(2).)
Courts have upheld dismissal where the plaintiff’s failure to timely amend was prolonged and unexplained. (See, e.g., Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1052, 1054 [affirming dismissal where the plaintiff had failed to file a second amended complaint for 60 days past the stipulated deadline]; Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 608, 612-614 [affirming dismissal where defendant failed to file fourth amended complaint for more than a month after 20-day period granted by the court passed, with no excuse for not seeking an extension].)
Here, as summarized above, Plaintiff had until May 5, 2026 to file an amended complaint. Plaintiff did not meet that deadline and, without seeking leave to amend, filed an untimely SAC on July 22, 2026 – 78 days after the deadline. The Court finds that dismissal of this action is warranted.
The Court acknowledges case law holding that the filing of an amended complaint, even if untimely, precludes dismissal under Code of Civil Procedure section 581, subdivision (f)(2) unless and until the amended complaint is stricken. (Gitmed v. Gen. Motors Corp. (1994) 26 Cal.App.4th 824 (Gitmed); Bai v. Yip (2024) 107 Cal.App.5th 188 (Bai).) However, both Gitmed and Bai involved untimely amendments filed by plaintiffs before defendants filed a motion to dismiss. Here, Plaintiff filed his SAC on July 22, 2026, well after Defendant filed its motion to dismiss on May 20, 2026, and without leave of court. The Court is unaware of any case addressing whether an untimely amended complaint filed after a motion to dismiss must be stricken before dismissal may be granted.
The Court finds that distinction significant. Allowing a post-motion amended complaint to defeat dismissal proceedings would undermine the finality and efficiency that Code of Civil Procedure section 581, subdivision (f)(2) is designed to provide. The rationale underlying the Gitmed Court’s decision supports that conclusion, as Gitmed expressly relied on the timing of amended complaint in relation to the motion to dismiss:
The facts here are similar to those in Brown v. Brown (1959) 169 Cal.App.2d 54, 337 P.2d 140. Brown involved a demurrer which was sustained with ten days leave to amend. Plaintiffs filed their amended complaint nine months later. Forty- nine days after the amendment was filed, the defendants moved to dismiss the complaint pursuant to section 581, subdivision 3 because the amendment had not
August 11, 2026 Law and Motion Calendar PAGE 17 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ been timely filed. The trial court granted the motion. On appeal, the court reversed and compared the situation to section 585 default proceedings, holding that: “[t]he plaintiff, by his inaction, loses the right to have a default and default judgment entered as a matter of course, but the defendant does not gain an absolute right to file a belated answer. ...
The answer, filed after the time has elapsed, may, in the court's discretion ..., be stricken out on motion of the plaintiff, and then the default may be entered.” (Brown v. Brown, supra, 169 Cal.App.2d at p. 57, 337 P.2d 140.) This analogous reasoning squares section 581, subdivision (f)(2) with other pleading situations where “it is generally recognized that an untimely pleading is not a nullity, and it will serve to preclude the taking of default proceedings unless it is stricken. [Citations.]” (A & B Metal Products v.
MacArthur Properties, Inc. (1970) 11 Cal.App.3d 642, 647, 89 Cal.Rptr. 873.) Accordingly, once the amended pleading is filed, the court must first grant a motion to strike the pleading before the action can be dismissed.
Applying the Brown rule to the matter at bar, we conclude that the filing of the amended complaint prevented the trial court from entertaining the motion to dismiss. The proper procedure would have been for the defendant to bring a motion to strike the amendment before moving to dismiss the complaint.
(Gitmed, supra, 26 Cal.App.4th at 827-28 [bold emphasis added, italics in original].)
Accordingly, the Court orders the SAC stricken and grants the motion to dismiss
If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written order and proposed judgment consistent with the Court’s ruling for the Court’s signature, 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 the California Rules of Court.