Gardner v. Horrall

SHINN, P. J. Aileen Gardner appeals from a judgment dismissing her action for false imprisonment. The sole question presented is whether the court abused its discretion when it struck out on motion of defendants an amended complaint filed 10 months after demurrers had been sustained with leave to amend within 30 days.

On December 21, 1948, plaintiff filed a complaint for false imprisonment against Los Angeles Police Chief Horrall and two policemen, Reid and MacClendon. Defendants demurred on July 8, 1949. On July 15th the parties stipulated in writing that the demurrers of the defendants be sustained with 30 days to amend, and a minute order to this effect was entered July 21, 1949. Plaintiff did not file an amended complaint until nine months thereafter. On April 24, 1950, defendants noticed a motion to dismiss the action under section 581(3) of the Code of Civil Procedure (failure to amend within time allowed). On May 1st by stipulation this motion was ordered off calendar. An amended complaint was filed May 17, and general demurrers to this complaint were filed May 29, accompanied by a notice of motion to strike the amended complaint. Defendants’ motions to restore to calendar the motion to dismiss the action, the motion to dismiss, itself, and the motion to strike the amended complaint, came on for hearing and were granted and the demurrers ordered off calendar. A motion by plaintiff for permission to refile the amended complaint was denied at the same time. Plaintiff appeals from the order of dismissal, which constitutes a “final judgment.” (Commins v. Guaranty Oil Co., 29 Cal.App. 139 [154 P. 882]; Southern Pac. Co. v. Willett, 216 Cal. 387 [14 P.2d 526].)

Appellant contends that in view of the established policy which favors trials on the merits it was an abuse of discretion for the court to dismiss the action, inasmuch as the neglect of counsel, if any, was excusable. In his affidavit, Mr. Ed[419]wards, one of the attorneys for appellant, stated that he was ill at the time the* demurrers were sustained and it was orally agreed between Deputy City Attorney Feldmeier and himself that, if necessary, appellant might take more than 30 days to file the amended complaint; that Mr. Feldmeier stated that the city attorney’s office was not interested in the amount of time taken to amend the complaint and that no advantage would be taken of plaintiff.

The motion to dismiss was heard on affidavits. Mr. Feldmeier filed no affidavit, and the court had before it only the affidavit of Mr. Edwards and counteraffidavits of Mr. Wilson, a deputy city attorney, who averred that Mr. Feldmeier had stated that he had no recollection of having given an oral extension of time. The case came to Mr. Wilson from Mr. Feldmeier with a notation to move for a dismissal if the complaint were not amended within the 30-day period. Mr. Wilson waited for some eight months before moving for a dismissal.