Filed 4/1/15 Eder v. South Coast Air Quality Management Dist. CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

HARVEY MARK EDER,

Plaintiff and Appellant,

v.

SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT et al.,

Defendants and Appellants. B251627

(Los Angeles County Super. Ct. No. SC119641)

APPEAL from the judgment of the Superior Court of Los Angeles County. Luis A. Lavin, Judge. Reversed and remanded with directions.

Harvey Mark Eder, in pro. per., for Plaintiff and Appellant.

Kurt R. Wiese, Barbara Baird an d William B. Wong for Defendants and Appellants.

* * * * * * * * * *2 Plaintiff and appellant Harvey Mark Eder filed this action for a writ of mandate, seeking to compel defendants and appella nts South Coast Air Quality Management District (SCAQMD) and Barry Wallerstein, SC AQMD’s executive offi cer, to convert the entire south coast air basin to solar energy with in five years. Defendants filed a demurrer which was sustained with 30 days leave to am end. Plaintiff did not file an amended pleading and defendants therefore sought an ex parte dismissal pursuant to Code of Civil Procedure section 581, subdivision (f)(2) (h ereafter section 581(f)(2)). The trial court granted defendants’ ex parte application an d ordered a dismissal without prejudice, denying defendants’ request for a dismissal w ith prejudice. Defendants appeal from that order and request entry of a judgment of dism issal with prejudice. Plaintiff filed a notice of cross-appeal from the order of dismissal but did not present any additional contentions

for consideration.

We reverse the order of dismissal withou t prejudice and direct the trial court to enter a judgment of dismissal with prejudice in favor of defendants.

FACTUAL AND PROCED URAL BACKGROUND Plaintiff filed his complaint in propria persona for a “writ of mandate” requiring defendant SCAQMD to complete a solar conve rsion of the entire south coast air basin within five years. Defendants filed a demurrer to the complaint, a nd also moved to have the action deemed related to two other nearly identical complaints filed by plaintiff, and

transferred to the central dist rict in accordance with Los Angeles Superior Court Local Rule 2.3 which requires writs of mandate to be filed in that district. The actions were

deemed related and were transf erred to the writs and receivers department in the central

district. On May 28, 2013, the court sustained defendants’ demurrer on multiple grounds, including that the complaint failed to state sufficient facts showing a mandatory duty3 owed by SCAQMD to convert the entire air quality basin to solar within five years. 1 The court granted plaintiff 30 days leav e to amend his complaint. Plaintiff failed to file an amended comp laint. At the trial setting conference held September 5, 2013 -- 100 days after the cour t had sustained the demurrer with 30 days leave to amend -- plaintiff orally requested ad ditional time to file an amended complaint. The court denied the request without prej udice to the filing of a noticed motion requesting such relief in accordance with Code of Civil Procedure section 473, subdivision (a)(1). Thereafter, defendants gave ex parte notice of their intent to seek dismissal of the action pursuant to section 581 (f)(2) in light of plaintiff’s failure to timely amend his pleading. In response, plainti ff apparently gave notice of his intent to file his own ex parte application. The document contained in the record is largely incomprehensible, but it appears plaintiff sought, in part, an additi onal 90 days to amend his pleading. On September 13, 2013, the ex parte applications were heard. Plaintiff was present for the hearing. The court granted de fendants’ request to dismiss the action, but entered a dismissal without prejudice, denying defendants’ request for dismissal with prejudice. The court noted in its order that it had attempted to accommodate plaintiff by granting 30 days leave to amend (20 days more than the time provided by the Rules of Court), that plaintiff had failed to timely amend, and that plaintiff had also failed to file any written request for further time to amend until after defendants gave notice of their application for dismissal. This appeal, and plainti ff’s cross-appeal, followed.

1 Apparently, similar demurrers in the two related cases were sustained without leave to amend on the grounds those actions were duplicative of this action. Those orders do not appear in the record, but plaintiff doe s not dispute those demurrers were sustained without leave to amend.4 DISCUSSION Section 581(f)(2) provides, as relevant here, that “[ t]he court may dismiss the complaint as to that defendant when: [¶] . . . [¶] after a demurrer to th e complaint is sustained with leave to amend, the plainti ff fails to amend it within the time allowed by the court and either party moves for dismissa l.” We review a trial court’s ruling on a motion to dismiss pursuant to section 581(f)(2) for abuse of discretion. ( Gitmed v. General Motors Corp . (1994) 26 Cal.App.4t h 824, 827; accord, Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1054 [discussing former version of the statute].) 2

Defendants were entitled to a dismissal with prejudice. In Cano v. Glover (2006) 143 Cal.App.4th 326 ( Cano ), the plaintiff deleted one of the defendants from his amended pleading after having unsuccessfully stated claims against the defendant in earlier versions of the pleading. The defe ndant sought entry of a formal order of dismissal with prejudice, but the trial court only entered a dismissal without prejudice.

The Cano court reversed and directed the trial cour t to enter a dismissal with prejudice in favor of the defendant. ( Id. at pp. 330-332.) The court explained that “no cases have held that a dismissal pursuant to section 581, subdivision (f)(2) may be without prejudice. The right to dismiss without prejudice is expressly permitt ed by other subdivisions of section 581 but section 581, subdivision (f)(2) does not so provide. [Citations.] . . . [Citation.] The dismissal without prejudice is also at variance with the California Rules

of Court. Rule 325(f) [ 3 ] provides for dismissal, by ex parte application or noticed motion, of ‘ the entire action and fo r entry of judgment after the expiration of the time to amend following the sustaining a demurrer . . . .’ [Citation.] Judgment may only be

2 We reject defendants’ contention, relying on Gogri v. Jack in the Box Inc . (2008) 166 Cal.App.4th 255, that our review is de novo. Gogri did not involve review of a motion to dismiss under section 581(f)(2), but an order vacating entry of a voluntary dismissal.

3 California Rules of Court, former rule 325(f) has been renumbered rule 3.1320(h).5 entered if the case has been adjudicated to finality.” ( Id . at pp. 329-330; see also Parsons v. Umansky (1994) 28 Cal.Ap p.4th 867, 870.)

Cano relied on the analysis of the Supreme Court in Wells v. Marina City Properties, Inc . (1981) 29 Cal.3d 781 ( Wells ). In Wells , the plaintiff failed to amend his pleading after the court sustained the defend ant’s demurrer with leave to amend. The plaintiff then sought to defeat the defendant’s right to a dismissal with prejudice by filing a voluntary dismissal of the action without pr ejudice on the day after being served with

the defendant’s motio n to dismiss. ( Wells, at pp. 783-785.) Wells concluded that a plaintiff’s absolute right to dismiss under su bdivision 1 of the form er version of section 581 did not trump the defendant’s right to a di smissal with prejudice at that stage of the proceedings. “We conclude, therefore, that once a general demurrer is sustained with leave to amend and plaintiff does not so amend within the time authoriz ed by the court or otherwise extended by stipul ation or appropriate order, he can no longer voluntarily dismiss his action pursuant to se ction 581, subdivision 1, even if the trial court has yet to enter a judgment of dismissal on the sustained demurrer.” ( Wells, at p. 789.) Plaintiff appears to suggest that the logic of Cano and Wells should not apply here because he had only been given one opport unity to amend. Howe ver, a plaintiff does not have an automatic right to mu ltiple rounds of pleadings. Rather, the law requires only that a plaintiff be afforded a fair opportunity to amend a pl eading found legally deficient by way of demurrer. Plaintiff here was given a reasonable opportunity to attempt to marshal additional facts to cure his pleadi ng and failed to do so. The court granted plaintiff 30 days leave to ame nd, and defendants di d not seek an ex parte dismissal until over 90 days after that deadline had passed. Plaintiff nonetheless failed to file any amended pleading within that entire timeframe, and then, only after defendants filed their application for dismissal, did plaintiff file, not an amended pleading, but a request for another 90 days in which to amend. More over, plaintiff requested this additional time without articulating any new material fact s to cure the defects in his pleading, specifically, no facts demonstrating SCAQMD had a mandatory duty to convert the entire

south coast air basin to solar energy within five years.6 DISPOSITION The September 13, 2013 order dismissing th e action without prejudice is reversed. The action is remanded to the superior court with directions to enter a new order and judgment of dismissal with prejudice in favor of the South Coast Air Quality Management District a nd Barry Wallerstein. South Coast Air Quality Mana gement District and Barry Wallerstein shall recover their costs on appeal.

GRIMES, J.

We concur: BIGELOW, P. J.

FLIER, J.