Filed 11/24/ 14 Kim v. Kim CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

MIN JUNG KIM ,
Plai ntiff and Appellant
,

v.
KYUNG SAE KIM,

Defendant and Respondent

. B249 127
(Los Angeles County Super. Ct. No. BC4 77350 )

APPEAL from a n order of the Superior Court of Los Angeles County. Robert L.
Hess , Judge. Affirmed

. Min Jung Kim, in pro

. per

. , for Plaintiff and Appellant

. La Follette, Johnson, De Haas, Fesler & Ames, Christopher P. Wend
, and David J.
Ozeran for Defendant and Respondent

.

* * * * * *2

The trial court gave p laintiff Min Jung Kim (p laintiff) 10 days to file an amended complaint. When she did not, the court dismissed her case under Code of Civil Procedure section 581, subdivision (f)(2). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND In January 2012, p laintiff sued Kyung Sae Kim, M.D. (Dr. Kim) for (1) sexual battery ; and (2) intention al infliction of emotional distress. Plaintiff alleged that Dr. Kim
had touched her inappropriately during a medical e xamination

. The trial court sustained demurrers to the original complaint and to the first amended complaint p laintiff filed thereafte r. The court dismissed the first amended complaint at a hearing, and gave p laintiff 10 days to file a second amended complaint. The day after the hearing, Dr. Kim served p laintiff with a notice of ruling reiterating the
10

- day deadline.
Some 2 1 days passed without p laintiff filing a second amended complaint,

p laintiff acknowledged missing this deadline in her opposition to Dr. Kim’s then

- pending motion to dismiss for discovery misconduct. She explained that she had not filed a second amended c omplaint because she had never received a “filed minute order” reflecting the court’s sustaining of the demurrer t o the first amended complaint with leave
to amend. Dr. Kim, in his reply to the opposition, asked the court to dismiss p laintiff’s complaint for the additional reason of the missed deadline. The trial court convened a hearing, and dismissed p laintiff’s complaint for failure to timely ame nd her complaint and as a sancti on for abuse of the discovery process (namely, not providing written discove ry responses and storming out of the deposition she was compelled by court order to attend). This appeal followed.
DISCUSSION A trial court may dismiss a complaint with prejudice if it sustain s a demurrer with leave to amend, the plaintiff does not f ile an amended complaint within the allotted time, and the defendant moves to dismiss. (Code Civ. Proc., § 581, subd. (f)(2) ; Cano v.
Glover (2006) 143 Cal.App.4th 326, 329

- 330

. ) A dismissal on this ground is appealable3

( Meyers v. Home Sav. & Loan Ass ’ n (1974) 38 Cal.App.3d 544, 546 ), and is reviewed for an abuse of discretion ( Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, 827).
There was no abuse of discretion in this case. It is uncontested that p laintiff was given 10 days to file her seco nd amended complaint and that she did not do so. This supports dismissal. ( See Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613

- 614 [trial court acted within its discretion to dismiss an action under Code Civ. Proc., § 581, sub d. (f)(2) where the plaintiff failed to file amended complaint by the court

- ordered date].) Plaintiff offers three arguments in response. First, she contends that the trial court should not have dismissed her complaint because she never received a copy o f a minute order directing her to file an amended complaint. But receipt of a minute order is not required. What is require d is notice, and p laintiff received it in this case because she was present at the hearing where the demurrer with leave to amend w as sustained and because
Dr. Kim served p laintiff with notice of that ruling the day after the hearing. Second,

p laintiff asserts she encountered difficulty having her first amended complaint translated into English, but this provides no excuse as to why she never filed her second amended complaint. Lastly, we are unable to apply a more forgiving standard in light o f p laintiff’s
status as a self

- represented litigant. (See, e.g., Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543 [“Pro. per. litigants are held to the same standards as attorneys”];
Gamet v. Blanchard (2001) 91 Cal.App.4 th 1276, 1284 [pro. per . litigants “are not entitled to special exemptions from the California Rules of Court or Code of Civil Procedure”] .)4

Because the dismissal is valid on this ground, we need not decide the propriety of the trial court’s alternative basis of discovery abu se. ( Sutter Health Uninsured Pricing
Cases (2009) 171 Cal.App.4th 495, 513 [ “one good reason is sufficient to sustain the order from which the appeal was taken” ] .)
DISPOSITION
The order of dismissal is affirmed. Parties to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

_____________________ __ , J.
HOFFSTADT
We concur:

____________________________, Acting P. J.
ASHMANN

- GERST

____________________________, J.
CHAVEZ