Wilburn v. Oakland Hospital

Opinion

BENSON, J.

Beatrice Wilburn appeals the granting of Oakland Hospital’s ex parte application dismissing her complaint, contending she was entitled to a noticed motion and the opportunity to present oral argument. We affirm the dismissal.

Statement of Facts

On October 9, 1984, Wilburn filed an amended complaint against Oakland Hospital, and others, alleging medical malpractice and the wrongful death of her son. On November 20, 1986, Oakland Hospital demurred on the ground that no certificate of merit accompanied the complaint as required by Code of Civil Procedure section 411.30. Wilburn opposed the demurrer and requested 60 days in which to file the certificate of merit. Neither party appeared at the hearing on the demurrer, and the court granted the demurrer with 60 days leave to amend. On January 9, 1987, notice of the order sustaining the demurrer was served by mail on Wilburn. On January 22, 1987, the order sustaining demurrer, approved as to form by Wilburn, was filed. Wilburn did not file the certificate of merit, but on November 9, 1987, filed an at-issue memorandum. Oakland Hospital filed a motion to strike the at-issue memorandum contending it had not responded to the complaint because of Wilburn’s failure to file the certificate of merit. This motion to strike was served by mail on November 19, 1987. Oakland Hospital then filed an ex parte application for order dismissing the action for failure to timely amend, and specified the application did not require notice. This ex parte application was served by mail on Wilburn on November 20. On November 23, Wilburn filed an objection in opposition to the ex

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parte application to dismiss and requested a noticed motion. Wilburn’s objections were based on the need for additional time to obtain a certificate of merit until December 14, 1987, and the need to conduct a previously noticed deposition. On December 2, the court granted the ex parte application for dismissal of complaint for failure of Wilburn to file a certificate of merit. The ex parte application and the court’s order were filed on December 3.

Discussion

Wilburn contends the court abused its discretion by dismissing the case without requiring a noticed motion. Wilburn cites California Rules of Court, rule 325(f), as requiring the noticing of a motion to dismiss after failure to amend. Oakland Hospital responds that an ex parte application to dismiss after failure of the party to amend does not require a noticed motion, and we agree.