Motion to Dismiss Cross-Complaints
23CV040419: FESSEHAYE vs SULLIVAN, et al. 06/11/2026 Hearing on Motion to Dismiss CRS# 860168779425 in Department 520
Tentative Ruling - 06/10/2026 Jamilah A. Jefferson
The Motion of Plaintiff and Cross-Defendant Dawit Fessehaye (Cross-Defendant or Plaintiff) to Dismiss Cross-Complaints is GRANTED.
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PROCEDURAL DEFECTS
To Cross-Complainants' point about potential service issues on Plaintiffs part, all parties are reminded to comply with all local rules, California rules of Court and statutory requirements in the litigation. (Sur-Reply, p. 2:3-10, Conway Sur Reply Decl., ¶¶ 4-8, Ex. C.)
LEGAL STANDARD
Under C.C.P. § 581(f)(2), the court may dismiss the complaint after a demurrer or motion for judgment on the pleading is sustained with leave to amend and a plaintiff fails to amend it within the time permitted. As reflected in the language, dismissal in such instances is discretionary. (See, e.g., Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 611 [plaintiff can seek leave to file amended pleading after expiration of the time allowed; Harlan v. Department of Transp. (2005) 132 Cal.App.4th 868, 874 [court has discretion to accept untimely amendment even without prior noticed motion]; Contreras v. Blue Cross of Calif. (1988) 199 Cal.App.3d 945, 948 [the court had discretion to grant or deny [defendants] motion to dismiss.])
DISCUSSION
On May 9, 2025, the Court sustained Cross-Defendants Demurrer with leave to amend. Defendants and Cross-Complainants Ashley Corrinne Cable, Daniel Inho Nam, and Michael Lawrence Morrill (Defendants or Cross-Complainants") did not file an amended complaint within the 30 days ordered by the Court or at all, but indicate that they want to. (Oppo., p. 3:4.) On May 8, 2026, Plaintiff filed the present motion and requested that the Court dismiss the August 2, 2024 Cross-Complaints as a result of the failure to amend. Defendants oppose the motion, arguing that dismissal cannot be mandated as the time to amend was never triggered under Code of Civil Procedure section 472b.
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Generally, the time runs from the date of service of notice of the court's decision, unless the notice is waived in open court, and the waiver is entered in the minutes. (Code Civ. Proc., § 23CV040419: FESSEHAYE vs SULLIVAN, et al. 06/11/2026 Hearing on Motion to Dismiss CRS# 860168779425 in Department 520 472b.) This Court's departmental rule is that notice is waived unless otherwise stated, and it is clearly stated in the Order that the Court ordered counsel to obtain a copy of this order from the eCourt portal. (May 9, 2025 Order.)
Plaintiff argues that Defendants should not benefit from their own lack of diligence and that she will suffer substantial prejudice due to the imminent trial date and likely need for Defendants to have to engage in discovery, which would delay the case. (Reply, pp. 2:19; 4:8-9.) It is true that allowing amendment will mean Plaintiff will suffer some prejudice and the Court notes that California law prefers vigilance over sleeping on one's rights. (CCP § 3527.) On the other hand, it is the general policy of the Court to resolve matters on their merits, rather than due to procedural issues.
However, in this situation, it has been more than one year since the Court granted leave to amend (and stated that the parties should "obtain a copy of this order from the eCourt portal"). There is no indication that Cross-Complainants were not served with the underlying motion or were unaware that an order existed - they only state that the tentative ruling was uncontested.
Trial date is maintained.
NOTICE: This tentative ruling will automatically become the courts final order on June 11, 2026 unless, by no later than 4:00 P.M. on June 10, 2026, a party to the action notifies BOTH: 1) the court by emailing Dept520@alameda.courts.ca.gov; AND 2) all opposing counsel or selfrepresented parties (by telephone or email) that the party is contesting this tentative ruling.
The subject line (RE:) of the email must state: Request for CONTESTED HEARING: [the case name], [number]. When a party emails to contest a tentative ruling, the party must identify the specific holding(s) within the ruling they wish to contest via oral argument.
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