Smith v. Banc of California, N.A. CA3

Filed 11/18/20 Smith v. Banc of California, N.A. CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Placer) ----

TRUDIE SMITH et al.,

Plaintiffs and Appellants, C086703

v. (Super. Ct. No. SCV0037797)

BANC OF CALIFORNIA, N.A. et al.,

Defendants and Respondents.

Trudie and Jeff Smith sued Banc of California N.A. and Angela Parrish in connection with a loan for the purchase of their home. After plaintiffs missed pleading deadlines despite a warning and a second chance from the trial court, the trial court struck plaintiffs’ late-filed first amended complaint and dismissed the action. Plaintiffs now contend they were entitled to relief under the mandatory provision of Code of Civil Procedure section 473, subdivision (b).1 We conclude that under the facts of this case, section 473, subdivision (b) did not prevent the trial court from

1 Undesignated statutory references are to the Code of Civil Procedure.

1

exercising its discretion under sections 436 and 581, subdivision (f)(2), to strike the first amended complaint and dismiss the action. We will affirm the judgment. BACKGROUND Defendants demurred to plaintiffs’ original complaint. Plaintiffs did not file an opposition to the demurrer; instead they obtained a stipulation from defendants that plaintiffs could file a first amended complaint no later than January 10, 2017. There is no indication in the record that plaintiffs provided the stipulation to the trial court before May 4, 2017. On January 9, 2017, several things happened. The trial court issued its tentative ruling on the demurrer. Plaintiffs attempted to file a first amended complaint, but the trial court clerk rejected the filing because a demurrer had been filed, the time for filing opposition to the demurrer had passed, and leave of court had not been granted to file a first amended complaint. In addition, plaintiffs’ counsel, notwithstanding the rejected filing, arranged to serve a copy of the unfiled first amended complaint on defendants’ counsel. On January 10, 2017, the trial court sustained the demurrer as to all causes of action in the original complaint, but granted leave to file and serve a first amended complaint by February 3, 2017. Plaintiffs did not file a first amended complaint by the deadline imposed by the trial court. Nevertheless, believing that plaintiffs had filed their first amended complaint, defendants demurred to the first amended complaint that had been served on them. The trial court continued the hearing on the demurrer, explaining that a first amended complaint had not been filed. It gave plaintiffs until April 7, 2017 to file their first amended complaint. Plaintiffs did not file a first amended complaint by that deadline, and they did not file a timely opposition to the demurrer. Because no first amended complaint had been filed, the trial court dropped the demurrer hearing from its calendar.