Dismissing a complaint in California by an ex-parte application

Dismissing a complaint in California by  an exparte application is the topic of this blog post.

In certain situations you can request that the court dismiss a complaint in California by giving notice of your exparte application. You can do this if you filed a demurrer to a complaint or a cross-complaint which was sustained with leave to amend by the court, and the plaintiff or cross-complainant does not amend their complaint or cross-complaint within the time allowed by the court.

Statutory authorization for dismissing a complaint in California by an ex-parte application.

The statutory authorization for dismissing a complaint on an exparte basis in California is found in Code of Civil Procedure section 581(f)(2) and California Rule of Court 3.1320(h).

You should make an exparte request to dismiss a complaint or cross-complaint if you are the party that filed a demurrer to a complaint or a cross-complaint which was sustained with leave to amend, and the plaintiff or cross-complainant does not amend their complaint within the time allowed by the court.

Code of Civil Procedure section 581(f)(2) states in pertinent part that the court "may dismiss the complaint" when "after a demurrer to a complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal."

California Rule of Court 3.1320(h) states in pertinent part that a defendant may seek dismissal following a plaintiff's failure to amend by way of an ex parte application.

Several published decisions of both the California Supreme Court and the Courts of Appeal clearly state that if a plaintiff fails to amend their complaint against which a demurer has been sustained with leave to amend within the time allowed, the court will consider that the plaintiff has essentially admitted that they have stated the case as best as they can.

The California Supreme Court has also stated in a published decision that if a plaintiff fails to amend their complaint against which a demurer has been sustained with leave to amend within the time allowed, the court must strictly construe the complaint and its allegations.

Sample exparte request to dismiss a complaint in California for sale.

Attorneys or parties in California that would like to view a portion of a 15 page sample exparte application to dismiss complaint containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration in support of the exparte application, sample declaration regarding exparte notice and an order granting the exparte application to dismiss the complaint sold by the author can use the link shown below.

Sample Ex-Parte Application to Dismiss Complaint in California by Stan Burman on Scribd

 

The author of this log post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.