Kwak vs. Progeny Psychiatric Clinic

The court then continued the hearing on this motion to allow Defendants to “file and serve supplemental motion papers that include the Declaration of Walter Emil Teague III, no later than July 10, 2026” and to “to file this motion in Tran Hung and Cu Khanh v. Allegheny Casualty Company, Westfield National Insurance Company, and Andrew Vo, Orange County Superior Court Case Number 30-2026- 01539064 and serve this motion on all parties that have appeared in that action, no later than July 10, 2026.” (Id. at p. 1.)

The court stated that “Defendants are advised that the court may deny this motion if they fail to supplement the motion papers or fail to serve the motion papers on all parties in the Later Case.” (Id. at p. 3.)

Defendants have failed to comply with either of the court’s instructions. Defendants did not file the Declaration of Walter Emil Teague III and did not file this motion in the Later Action.

Therefore, the court will deny the motion.

The court clerk shall give notice of this ruling.

4 Kwak vs. Progeny Motion to Dismiss Psychiatric Clinic Defendant Progeny Psychiatric Clinic’s Motion to Dismiss Plaintiff’s Complaint is DENIED.

Pending Motion

Defendant Progeny Psychiatric Clinic moves to dismiss Plaintiff’s pursuant to Civil Procedure Code section 581(f)(2) and California Rules of Court rule 3.1320(h).

Dismissal of Complaint=

The court has discretion to dismiss a complaint if, “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.” (Code Civ. Proc., § 581, subd. (f)(2).)

In addition, “[a] motion to dismiss the entire action and for entry of judgment after expiration of the time to amend following the sustaining of a

demurrer may be made by ex parte application to the court under Code of Civil Procedure section 581(f)(2).” (Cal. Rules of Court, rule 3.1320(h).)

On May 18, 2026, the court sustained Defendant’s demurrer in its entirety and granted Plaintiff 15 days leave to amend. (See ROA #47 at p. 1.)

Thereafter, on June 1, 2026, the court granted Defendant’s motion to strike and again granted Plaintiff 15 days’ leave to amend. (ROA #53 at p. 1.)

Based on the court’s June 1, 2026, ruling, Defendant contends that Plaintiff had until June 19, 2026 to amend her complaint and that her First Amended Complaint, which was filed on June 23, 2026, was untimely. (See ROA #61.)

However, Plaintiff was not present at the hearing on June 1, 2026, (see id. at p. 1), and although Defendant gave notice of the ruling, it did so electronically, (see ROA #55).

While service by electronic mail is acceptable and even mandatory when a party is represented by counsel, (see Code Civ. Proc., § 1010.6, subd. (b)), it may only be effectuated on an self-represented party if that party consents, (see Code Civ. Proc., § 1010.6, subd. (b); see also Cal. Rules of Court, rule 2.251(b).)

Here, there is no evidence that Plaintiff has agreed to electronic service.

Further, the First Amended Complaint was filed only four days after the deadline and more than two weeks before Defendant filed this motion. Thus, Defendant has suffered no undue prejudice as a result of Plaintiff’s untimeliness.

The court must also consider that “the law strongly favors trial and disposition on the merits.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233, superseded by statute, on other grounds, as discussed in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64.)

Therefore, the court will exercise its discretion and deny the motion.

The court clerk shall give notice of this ruling.