Datig v. Dove Books, Inc

In Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964, the court sustained the defendant's demurrer to the complaint with 20 days' leave to amend. The plaintiff filed an amended complaint on the 20th day. Two days later, the defendants, without notifying the plaintiff, made an ex parte application for an order dismissing the complaint for failure to file a timely amendment. In fact, the defendants knew the plaintiff had filed the amended complaint within the prescribed time, but did not disclose this fact to the court. The court granted the application and entered a judgment of dismissal the same day. The plaintiff, upon learning of the judgment, moved to set it aside. The motion was heard by a different judge, who tentatively granted it, but then continued the matter to some unspecified date so the first judge could decide it. Sixty days after the judgment of dismissal was entered, but before the continued hearing could be set, the plaintiff filed a notice of appeal. The plaintiff challenged the dismissal on the ground she had not been given notice of the ex parte hearing, and the application had failed to comply in other respects with the requirements of rule 379. The appellate court reversed the judgment after concluding "(1) it was obtained without notice or any excuse for lack of notice, and (2) there was no factual basis for its entry." (Datig v. Dove Books, Inc., supra, 73 Cal.App.4th at p. 967.)