Kim v. Kim CA2/2

Filed 11/24/14 Kim v. Kim CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

MIN JUNG KIM, B249127

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC477350) v.

KYUNG SAE KIM,

Defendant and Respondent.

APPEAL from an order of the Superior Court of Los Angeles County. Robert L. Hess, Judge. Affirmed. Min Jung Kim, in pro. per., for Plaintiff and Appellant. La Follette, Johnson, De Haas, Fesler & Ames, Christopher P. Wend, and David J. Ozeran for Defendant and Respondent.

******

The trial court gave plaintiff Min Jung Kim (plaintiff) 10 days to file an amended complaint. When she did not, the court dismissed her case under Code of Civil Procedure section 581, subdivision (f)(2). We affirm. FACTUAL AND PROCEDURAL BACKGROUND In January 2012, plaintiff sued Kyung Sae Kim, M.D. (Dr. Kim) for (1) sexual battery; and (2) intentional infliction of emotional distress. Plaintiff alleged that Dr. Kim had touched her inappropriately during a medical examination. The trial court sustained demurrers to the original complaint and to the first amended complaint plaintiff filed thereafter. The court dismissed the first amended complaint at a hearing, and gave plaintiff 10 days to file a second amended complaint. The day after the hearing, Dr. Kim served plaintiff with a notice of ruling reiterating the 10-day deadline. Some 21 days passed without plaintiff filing a second amended complaint, plaintiff acknowledged missing this deadline in her opposition to Dr. Kim’s then-pending motion to dismiss for discovery misconduct. She explained that she had not filed a second amended complaint because she had never received a “filed minute order” reflecting the court’s sustaining of the demurrer to the first amended complaint with leave to amend. Dr. Kim, in his reply to the opposition, asked the court to dismiss plaintiff’s complaint for the additional reason of the missed deadline. The trial court convened a hearing, and dismissed plaintiff’s complaint for failure to timely amend her complaint and as a sanction for abuse of the discovery process (namely, not providing written discovery responses and storming out of the deposition she was compelled by court order to attend). This appeal followed. DISCUSSION A trial court may dismiss a complaint with prejudice if it sustains a demurrer with leave to amend, the plaintiff does not file an amended complaint within the allotted time, and the defendant moves to dismiss. (Code Civ. Proc., § 581, subd. (f)(2); Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.) A dismissal on this ground is appealable