Di Benedetto v. Lais CA5

Filed 3/14/13 Di Benedetto v. Lais CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

LAWRENCE DI BENEDETTO, F064372 Plaintiff and Appellant, (Super. Ct. No. 08C0168) v.

J. LAIS et al., OPINION Defendants and Respondents.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge. Lawrence Di Bendetto, in pro. per., for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Jonathan L. Wolff, Assistant Attorney General, Thomas S. Patterson and Kenneth T. Roost, Deputy Attorneys General, for Defendants and Respondents. -ooOoo-

* Before Cornell, Acting P.J., Detjen, J. and Peña, J.

Plaintiff and appellant Lawrence Di Benedetto appeals from an order dismissing his civil action. The Attorney General, representing defendants and respondents J. Lais and L. Smart, two prison officials,1 concedes that we should reverse the judgment of dismissal. Having reviewed the briefs and the record, we concur. The trial court previously sustained defendants’ demurrer to plaintiff’s second amended complaint, denied leave to amend, and entered judgment against plaintiff. Although concluding the demurrer was properly sustained, this court reversed the judgment, concluding that plaintiff was entitled to further amend the complaint to attempt to state a cause of action. Our dispositional language included the following: “The matter is remanded to the superior court, and that court shall modify its May 18, 2009, order so as to grant [plaintiff] a specified reasonable amount of time within which to amend his pleading.” (Di Benedetto v. Lais, supra, F060165.) This court’s remittitur issued in July 2011. On October 6, 2011, defendants filed a notice of motion to dismiss the case because plaintiff had failed to file an amended complaint within 30 days of issuance of the remittitur.2 On October 31, 2011, plaintiff filed opposition, asserting he was unaware of Code of Civil Procedure section 472b, and seeking relief from the default because of his excusable mistake in relying on the language in the dispositional paragraph of the appellate opinion. (The record on appeal does not contain the documents plaintiff apparently filed in support of the opposition, but defendants do not disagree with plaintiff’s characterization of the contents of those