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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 

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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 and William B. Wong for Defendants and 

Appellants. 

* * * * * * * * * * 
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 Plaintiff and appellant Harvey Mark Eder filed this action for a writ of mandate, 

seeking to compel defendants and appellants South Coast Air Quality Management 

District (SCAQMD) and Barry Wallerstein, SCAQMD’s executive officer, to convert the 

entire south coast air basin to solar energy within five years. Defendants filed a demurrer 

which was sustained with 30 days leave to amend. 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) (hereafter section 581(f)(2)). The trial court 

granted defendants’ ex parte application and ordered a dismissal without prejudice, 

denying defendants’ request for a dismissal with prejudice. Defendants appeal from that 

order and request entry of a judgment of dismissal 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 without prejudice and direct the trial court to 

enter a judgment of dismissal with prejudice in favor of defendants. 

FACTUAL AND PROCEDURAL BACKGROUND 

 Plaintiff filed his complaint in propria persona for a “writ of mandate” requiring 

defendant SCAQMD to complete a solar conversion of the entire south coast air basin 

within five years. Defendants filed a demurrer to the complaint, and also moved to have 

the action deemed related to two other nearly identical complaints filed by plaintiff, and 

transferred to the central district 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 transferred 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 duty 
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owed by SCAQMD to convert the entire air quality basin to solar within five years.1 The 

court granted plaintiff 30 days leave to amend his complaint. 

 Plaintiff failed to file an amended complaint. At the trial setting conference held 

September 5, 2013 -- 100 days after the court had sustained the demurrer with 30 days 

leave to amend -- plaintiff orally requested additional time to file an amended complaint. 

The court denied the request without prejudice 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, plaintiff 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 additional 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 defendants’ 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 plaintiff’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 does not dispute those demurrers were sustained 

without leave to amend. 
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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 the 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.” 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.4th 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 defendant 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 court 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 permitted 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 for 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). 
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entered if the case has been adjudicated to finality.” (Id. at pp. 329-330; see also Parsons 

v. Umansky (1994) 28 Cal.App.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 defendant’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 prejudice on the day after being served with 

the defendant’s motion to dismiss. (Wells, at pp. 783-785.) Wells concluded that a 

plaintiff’s absolute right to dismiss under subdivision 1 of the former version of section 

581 did not trump the defendant’s right to a dismissal 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 authorized by the court or 

otherwise extended by stipulation or appropriate order, he can no longer voluntarily 

dismiss his action pursuant to section 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 opportunity to amend. However, a plaintiff does not 

have an automatic right to multiple rounds of pleadings. Rather, the law requires only 

that a plaintiff be afforded a fair opportunity to amend a pleading found legally deficient 

by way of demurrer. Plaintiff here was given a reasonable opportunity to attempt to 

marshal additional facts to cure his pleading and failed to do so. The court granted 

plaintiff 30 days leave to amend, and defendants did 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. Moreover, plaintiff requested this additional time 

without articulating any new material facts 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. 
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DISPOSITION 

 The September 13, 2013 order dismissing the 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 and Barry Wallerstein. 

South Coast Air Quality Management District and Barry Wallerstein shall recover 

their costs on appeal. 

 GRIMES, J. 

 We concur: 

 BIGELOW, P. J. 

 FLIER, J.