Parris v. Cave

Opinion

SIMS, J.

In this case we hold that service by defendant’s attorneys of a file-stamped copy of a formal order sustaining a demurrer with leave to amend constitutes lawful service of notice of the order pursuant to Code of Civil Procedure section 472b.

1

Plaintiffs appeal the dismissal of their complaint against defendant Reece Cave.

2

Defendant filed a demurrer to plaintiffs’ second amended complaint. Before the hearing on the demurrer, plaintiffs’ attorney sent a letter to the trial court stipulating that the demurrer should be sustained with 30 days leave to amend on the condition that previously imposed sanctions be withdrawn.

In accordance with the stipulation, the trial court entered a formal order sustaining defendant’s demurrer with 30 days leave to amend.

Defendant’s attorneys promptly served on plaintiffs by mail a file-stamped copy of the formal order which expressly gave plaintiffs 30 days leave to amend.

[294]

After plaintiffs failed to amend within the time set forth in the order, the trial court dismissed plaintiffs’ action at defendant’s request pursuant to Code of Civil Procedure section 581.

Plaintiffs then moved to set aside the order which dismissed their complaint. Their motion was based on the claim that defendant failed to give notice of the order sustaining the demurrer as required by section 472b and, thus, the time within which to amend had not yet begun to run.

3

The same claim is made here, i.e., that service of the formal order itself did not constitute lawful “notice” under the statute.

Discussion

I

Plaintiffs ’ Appeal

We agree with the trial court’s conclusion that service of the file-stamped copy of the formal order constituted the notice required by section 472b.