DISCUSSION

Code of Civil Procedure section 581, subdivision (f)(2) states, in relevant part: “The 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.” Dismissal of the complaint when a plaintiff fails to file a timely amendment is discretionary. (Harlan v. Department of Transportation (2005) 132 Cal.App.4th 868, 874.) In Harlan, the court allowed the plaintiffs to file a belated amendment, although the defendant did not have an opportunity to resist the motion. The defendant argued that dismissal was mandatory because the plaintiffs missed the deadline the court had imposed to file an amendment after sustaining the defendant’s demurrer. Rejecting the defendant’s argument, the court expressly held that section 581, subdivision (f)(2) places the decision whether to dismiss within the court’s discretion. (Harlan, at p. 874.) Here defendant admits that it failed to serve plaintiff with notice of the motion to dismiss and mistakenly served the lawyer who had been removed. Whether the failure to afford plaintiff due process renders the judgment void or voidable (see Adoption of B.C.

2 (2011) 195 Cal.App.4th 913, 925; Johnson v. E-Z Ins. Brokerage, Inc. (2009) 175 Cal.App.4th 86, 98-99; Lee v. An (2008) 168 Cal.App.4th 558, 563-565), the matter must be reversed and the case remanded to the trial court to exercise its discretion whether to allow plaintiff to file an amended complaint beyond the period allowed by the order sustaining the demurrer with leave to amend. Because the trial court retains the discretion to allow an amended complaint, any consideration of the merits of the demurrer is premature and the filing of the amended complaint, if allowed, will moot the demurrer.

DISPOSITION

The judgment is reversed and the matter is remanded to the trial court to proceed as directed. Plaintiff shall recover costs on appeal.

RAYE , P. J.

We concur:

BLEASE , J.

MURRAY , J.

3