NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

Jeffrey Crampton appeals from the judgment of dismissal entered after the trial court sustained respondents' demurrer to a second amended complaint without leave to amend.1 Appellant contends his second amended complaint alleged facts sufficient to state a cause of action, the facts alleged were not contradictory or inconsistent to his two prior complaints, and the trial court abused its discretion in dismissing his entire action based on a one-day filing delay. We agree that appellant's second cause of action properly stated a cause of action and the trial court abused its discretion in dismissing his entire action. We accordingly affirm the judgment in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

1. Complaint

On March 18, 2009, appellant filed a form complaint against respondents.

The first cause of action alleged that (1) on or about June 10, 2008, in the course of their employment by the Los Angeles County Sheriff's Department, Spurrier and Rosa were operating a County vehicle near the intersection of Bauchet and Vignes Streets in Los Angeles; (2) respondents were negligent; and (3) their acts were the legal or proximate cause of injuries sustained by appellant.

The second cause of action claimed general negligence and asserted that appellant was in respondents' custody and control as an inmate of the Los Angeles Men's Central Jail. Appellant alleged he was being transported from the jail to a local medical facility and that Spurrier and Rosa "drove the subject van, securing [appellant] in a wheelchair which they placed in the back of the van." The complaint asserted that appellant was not able to move from the wheelchair because he was secured to it by restraints. Appellant stated that Spurrier and Rosa did not properly secure his wheelchair in the van and "[w]hile en route" appellant in his wheelchair tipped over and struck the floor of the van "with great force."

The complaint alleged that Spurrier and Rosa were negligent in failing to properly secure appellant's wheelchair to the van and in failing to provide him with adequate safety while he was in their custody. Appellant alleged that as a result of respondents' negligence he sustained injuries to his person, including head and neck pain, a fractured jaw, hearing loss, blurred vision and a concussion.2

The County demurred to appellant's complaint. The demurrer asserted that both the first and second causes of action were barred by a number of statutory immunities.3

The trial court sustained the County's demurrer to both causes of action with leave to amend. The court ruled that, in addition to failing to allege the specific statutory basis for liability against the County, appellant failed to allege any causes of action that were not subject to the public entity immunity prescribed in Government Code section 844.6.4

2. First Amended Complaint

Appellant filed a first amended complaint.

The first cause of action remained identical to the original complaint. Appellant again alleged without any specifics "negligence" by Spurrier and Rosa in the "operation" of a motor vehicle.

Omitting the allegation that appellant's injury was caused by the failure to secure the wheelchair, the second cause of action of the first amended complaint alleged that Spurrier and Rosa placed appellant and his wheelchair into the subject vehicle, and "[w]hile en route from L.A. Men's Central Jail, due to the negligent operation of said vehicle, [appellant's] wheelchair became dislodged, tipped over, and fell, causing [appellant] to strike his body on the interior of said vehicle with great force." (Italics added.)

Respondents jointly demurred to the first amended complaint. Respondents noted that the complaint originally had alleged that appellant's wheelchair had tipped over due to negligence in securing the wheelchair to the van, but the first amended complaint now alleged that the tip over was due to the "negligent operation" of the vehicle by Spurrier and Rosa. Respondents contended that appellant could not artfully plead around the prior complaint, by alleging a negligent operation of the vehicle rather than a negligent securing of the wheelchair.

The trial court sustained respondents' demurrer to the first amended complaint on the grounds that appellant had failed to allege the specific statutory basis for liability against the County or to allege causes of action not subject to immunities. The court ruled that appellant had not corrected the defects present in the original complaint, and he had not offered factual allegations to support his conclusory statement that the individual defendants were negligent.

Although the court was inclined to sustain the demurrer without leave to amend, it granted appellant leave to amend to flesh out the causes of action.

The trial court ruled on respondents' demurrer to the first amended complaint on August 4, 2009, and granted 10 days' leave to amend. Counsel for respondents personally served notice of the court's ruling upon appellant's counsel on August 4.

3. Second Amended Complaint

Appellant filed his second amended complaint on August 17, 2009, one court day late.

Appellant's first cause of action in the second amended complaint remained the same, with only a general recital that respondents were negligent.

Appellant's second cause of action alleged that Spurrier and Rosa were operating a bus or wheelchair van in the course and scope of their employment and that they placed appellant into a wheelchair and "waistchained" him so as to immobilize his hands and arms. Appellant alleged he was being transported to the Los Angeles County Medical Center. He now asserted that Spurrier and Rosa negligently and carelessly operated the bus or wheelchair van so as to cause the van to: "(a) exceed the posted speed limit; (b) suddenly and unreasonably accellerate [sic] without warning; (c) suddenly and unreasonably decelerate and brake without warning; (d) run through a red light while making a left turn . . .; and (e) make numerous unsafe turning movements."

Additionally, appellant alleged that Spurrier and Rosa negligently operated the bus or wheelchair van "by failing to engage the wheelchair tie downs which are intended to secure [appellant's] wheelchair in a fixed location and minimize injury due to wheelchair movement."

Respondents moved to strike the second amended complaint as being untimely because it was filed one court day too late.

Respondents also filed a demurrer to the second amended complaint. They asserted the first cause of action still failed to meet the requirement of specificity in pleading against a public entity or to plead facts sufficient to overcome statutory immunities.

Respondents further contended the second cause of action failed to plead a statutory basis for liability and failed to negate limitations contained in the statutes invoked by appellant. Respondents noted that appellant's allegations in the original complaint were tantamount to a judicial admission that it was the negligent securing of appellant's wheelchair — and not the negligent operation of the van — that caused his injuries. Respondents further raised their general immunity under section 820.2 (discretionary acts),5 together with immunities granted under sections 845 (failure to provide police protection), 845.2 (inadequate equipment or personnel), and 845.6 (failure to furnish medical care).6

The trial court sustained respondents' demurrer to the second amended complaint without leave to amend. The court ruled that appellant had failed to allege the specific statutory basis for liability against the County and that respondents were immune from liability under sections 820.2 and 844.6. Those defects, the court ruled, were present in the original complaint and first amended complaint and appellant had failed to correct them.

The trial court also found that appellant had made contradictory and contrary factual allegations that the individual respondents were negligent in operating their vehicle by speeding, suddenly stopping and suddenly accelerating, running a red light and making unsafe turning movements, although appellant had never asserted these facts in the original complaint or first amended complaint and despite having the ability to do so. Such allegations, the court concluded, were sham because they were asserted for the first time in the second amended complaint and were contrary to appellant's earlier judicial admissions that he was injured as a result of the improper restraint of his wheelchair.7

The court found respondents' motion to strike the second amended complaint to be moot in light of its ruling on demurrer.

4. Judgment of Dismissal

Having sustained the demurrer to the second amended complaint without leave to amend, the trial court entered a judgment in favor of the County and its employees, Spurrier and Rosa. Appellant timely appealed from the judgment.

STANDARD OF REVIEW

On appeal from a judgment dismissing an action after the trial court has sustained a demurrer without leave to amend, we give the complaint a reasonable interpretation and treat the demurrer as admitting all properly pleaded material facts. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando).) We further consider matters that may be judicially noticed. (Schifando, at p. 1081.) We do not assume the truth of contentions, deductions or conclusions of law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) We also give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context. (Ibid.)

Reviewing the propriety of a judgment of dismissal, we determine whether the complaint states facts sufficient to constitute a cause of action. (Blank, supra, 39 Cal.3d at p. 318; Schifando, supra, 31 Cal.4th at p. 1081.) If the pleading does not state a cause of action, we decide whether there is a reasonable possibility the defect can be cured by amendment. If it can be cured, the trial court has abused its discretion, and we reverse. If it cannot be cured, the trial court has not abused its discretion, and we affirm. (Schifando, at p. 1081.) The burden of demonstrating a reasonable possibility of amending the complaint rests squarely on the plaintiff. (Hendy v. Losse (1991) 54 Cal.3d 723, 742; Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 975-976.)

Because the present case involves a claim against a public entity and its employees, it is subject to the California Government Claims Act. (§ 810 et seq.) Under the Government Claims Act, all governmental tort liability must be based on statute, and statutory causes of action must be pleaded with particularity. (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932 (Hoff); Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809 (Susman).) Every fact essential to establish statutory liability must be pleaded. (Hoff, at p. 932; Susman, at p. 809.) Further, the plaintiff has the responsibility to plead sufficient facts to demonstrate his cause of action lies outside the confines of any applicable statutory immunity. (Susman, at p. 809.)8

DISCUSSION

1. Liability of Public Entity and Public Employees

"[T]he general rule is that an employee of a public entity is liable for his torts to the same extent as a private person (§ 820, subd. (a)) and the public entity is vicariously liable for any injury which its employee causes (§ 815.2, subd. (a)) to the same extent as a private employer (§ 815, subd. (b))." (Societa per Azioni de Navigazione Italia v. City of Los Angeles (1982) 31 Cal.3d 446, 463; see also Hoff, supra, 19 Cal.4th at p. 932; Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209-210.)

The claims against respondents must be measured against these standards.

2. The Trial Court Properly Sustained the Demurrer to the First Cause of Action Without Leave to Amend

In his first cause of action, using a Judicial Council form entitled "Cause of Action — Motor Vehicle," appellant only generally alleged, on information and belief, that "the acts of [respondents] were negligent; the acts were the legal (proximate) cause of [appellant's] injuries," which occurred "on or about 6/10/2008." Aside from identifying the place of injury as "at . . . or near the intersection of Bauchet and Vignes Streets in the City of Los Angeles, County of Los Angeles, State of California" and Spurrier and Rosa as the "defendants who operated a motor vehicle," appellant in the first cause of action provided no other details of the alleged negligent acts.

The County specially and generally demurred to the first cause of action. As to the special demurrer, the County argued that the first cause of action was uncertain, ambiguous and unintelligible, because the parties, the causes of action and remedies were "intermingled and unintelligible."

The demurrer also pointed out that the first cause of action failed to state facts to constitute a cause of action because appellant had not alleged the requisite statutory basis for his claim. (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 639.) In County of Los Angeles, the court explained that "`[o]ne of the essential elements that must be pled is the existence of a specific statutory duty. . . . ". . . Since the duty of a governmental agency can only be created by statute or `enactment,' the statute or `enactment' claimed to establish the duty must at the very least be identified." . . .'" (Id. at p. 638.) For example, under section 815.6,9 the enactment must be obligatory, it must require that a particular action be taken or not taken, the mandatory duty must be designed to protect against the particular kind of injury the plaintiff suffered, and the plaintiff must show the breach of the mandatory duty was the proximate cause of the injury suffered. (County of Los Angeles, supra, at pp. 638-639.)

The County also contended that the first cause of action failed to specifically plead facts that removed appellant's cause of action from the absolute immunity conferred by state law upon the County. Moreover, the County asserted, the first cause of action for "motor vehicle negligence" must be read in light of the whole pleading, and the second cause of action alleged facts that clearly would bar appellant from bringing a claim against the County under section 844.6 (injuries by or to a prisoner) and other statutes.

In its demurrer, the County noted that, except in certain described circumstances, it is immune for injuries to prisoners under section 844.6. Vehicle Code section 17001, which allows liability for personal injury proximately caused by the negligent operation of a motor vehicle, provides for one of the few exceptions to public entity immunity for an injury to a prisoner.10 (See Gov. Code, § 844.6, subd. (b).) The County pointed out that the allegations of the second cause of action suggested that appellant's claimed injury did not result from negligent operation of a vehicle, but rather from the securing of a wheelchair prior to operation of the vehicle. The County asserted that a negligent securing of a wheelchair inside a van did not trigger application of Vehicle Code section 17001 because the statute applied to a wrongful act or omission in the operation of a motor vehicle.11

After sustaining the County's demurrer to the first cause of action, the trial court granted appellant two separate opportunities to amend. In each instance, appellant made no effort to amend this cause of action, standing instead on the existing allegations.

When the trial court sustains a demurrer with leave to amend and the plaintiff elects to not do so, the presumption is that he has stated as strong a case as he can; in determining whether the court abused its discretion, we will resolve all ambiguities and uncertainties raised by the demurrer against the plaintiff. (Hooper v. Deukmejian (1981) 122 Cal.App.3d 987, 994; see also Soliz v. Williams (1999) 74 Cal.App.4th 577, 585.)

Appellant's first cause of action pleaded "motor vehicle" negligence only in the most vague and conclusory terms, and it failed to allege "[e]very fact essential to the existence of [respondents'] statutory liability." (Susman, supra, 269 Cal.App.2d at p. 809.) Aside from identifying Spurrier and Rosa as defendants who "operated" a motor vehicle in the course of their employment, appellant offered no particulars of the alleged incident or indicated in what manner the individuals were "negligent."

The conclusion is inescapable that appellant deliberately kept his allegations of negligence in the first cause of action vague so as to avoid immunities granted by the Legislature to public entities and public employees. Because appellant has not shown in what manner he could amend his allegations, the trial court did not abuse its discretion in sustaining respondents' demurrer to the first cause of action without leave to amend.

3. The Trial Court Improperly Sustained the Demurrer to the Second Cause of Action

The second cause of action in the original complaint alleged general negligence against respondents. Appellant alleged that "[b]y the following acts or omissions to act, defendant negligently caused the damage to plaintiff . . ." in that Spurrier and Rosa "did not properly secure [appellant's] wheelchair in the van." The original complaint further alleged that Spurrier and Rosa also were negligent in "failing to provide [appellant] with adequate safety on the day of the incident while [appellant] was in [Spurrier and Rosa's] custody." The complaint went on to allege the County's vicarious liability as the employer of Spurrier and Rosa.

The trial court sustained the County's demurrer to the second cause of action of the initial complaint based on grounds including the immunity as to an injury sustained by a prisoner under section 844.6.

Appellant's first amended complaint then alleged that Spurrier and Rosa "operated the subject vehicle" in which they secured and immobilized appellant into a wheelchair with restraints; they placed appellant and his wheelchair in the vehicle; and due to their negligent operation of the vehicle, appellant's wheelchair became dislodged, tipped over and fell while en route from the jail to a medical facility, causing appellant to strike his body on the interior of the vehicle with great force. Appellant alleged that, pursuant to section 844.6, Spurrier and Rosa were not immune from liability for their negligent acts. Appellant further alleged that the County was vicariously liable for the acts of its employees pursuant to section 815.2.

The trial court sustained respondents' demurrer to the first amended complaint on the grounds that appellant alleged no facts to support his conclusory allegations and failed to state a statutory basis as to the County as required by section 815, subdivision (a) and to state causes of action not subject to the immunities contained in sections 820.2, 844.6 and 845.6.

Appellant's second amended complaint went on to allege as follows. Appellant was a prisoner in custody of the County, and, on the day of the incident, Spurrier and Rosa were operating the bus or wheelchair van in the course and scope of their employment by the County. Spurrier and Rosa placed appellant into a wheelchair and waistchained him so as to immobilize his hands and arms. Appellant had a history of suffering from a stroke and had lost much of the use of the left side of his body. Appellant was being transported as a prisoner in the bus owned by the County and driven by Spurrier and Rosa in the course of their employment. Spurrier and Rosa negligently and carelessly operated the bus or wheelchair van so as to cause it to exceed the posted speed limit, suddenly and unreasonably accelerate without warning, suddenly and unreasonably decelerate and brake without warning, run through a red light while making a left turn, and engage in numerous unsafe turning movements. Spurrier and Rosa negligently failed to engage the wheelchair tie downs intended to secure appellant's wheelchair in a fixed location and minimize injury due to wheelchair movement.

The trial court sustained respondents' demurrer to the second amended complaint without leave to amend on grounds including that appellant had alleged "contradictory and contrary factual allegations" regarding Spurrier and Rosa's negligence in speeding, suddenly stopping and suddenly accelerating, running a red light and making unsafe turning movements, though appellant never asserted these facts in the original complaint and first amended complaint "despite having the ability to do so."

The court found such allegations were contrary to appellant's earlier "judicial admissions" that he was injured as a result of the improper restraining of the wheelchair, rather than the negligent operation of the vehicle. As such, the court found such allegations to be sham allegations.

A. The Allegations of the Second Amended Complaint Were Not in Conflict with Prior Pleadings

We disagree with the trial court's finding that the prior allegations regarding the failure to secure the wheelchair are contrary to and contradict appellant's subsequent allegations that his injuries were caused by Spurrier and Rosa's negligent operation of the vehicle in speeding, making sudden stops and starts, running a red light and engaging in unsafe turning movements. One allegation is not contradictory to the exclusion of the other. There may be more than one negligent cause of injury. "[T]he law recognizes that there may be multiple causes of a plaintiff's injury. `"It is not essential to a recovery of damages that a defendant's wrongful act be the sole and only cause of the injury; it is sufficient if it be a proximate cause which in the natural course of events produced, either by itself or in conjunction with other causes, the damage."'" (Third Eye Blind, Inc. v. Near North Entertainment Ins. Services, LLC (2005) 127 Cal.App.4th 1311, 1319; see 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1193, p. 568; CACI No. 431.)

Appellant's original complaint only partially stated the basis for his negligence claim. After the trial court sustained the County's demurrer, appellant pleaded additional circumstances under which respondents were liable to him. The allegation that Spurrier and Rosa were negligent in failing to secure the wheelchair to the van does not contradict the additional facts that appellant's injuries were also caused by the individuals' negligent unreasonable operation of the van in exceeding the speed limit, suddenly accelerating and braking without warning, making other unsafe maneuvers and running a red light.12

Because there may be multiple causes of an injury, the allegation that the individual respondents negligently failed to secure appellant's wheelchair before the vehicle was in motion is consistent with the allegation that appellant was injured by the negligent operation of the van during the course of transport as well.

The trial court thus erred in concluding appellant was barred by his prior "judicial admission" from alleging additional causes of his harm.

B. Respondents Are Not Immune from Liability Under Section 844.6

Section 844.6 provides that a public entity is not liable for "[a]n injury to any prisoner." The trial court erred in ruling that appellant's claim was necessarily barred by this provision and that respondents accordingly are immune from suit under the statute.

Initially, we note that the individual respondents are not entitled to immunity under section 844.6. Subdivision (d) of the statute provides that "[n]othing in this section exonerates a public employee from liability for injury proximately caused by his negligent or wrongful act or omission." (§ 844.6, subd. (d), italics added; see Van Alstyne, Government Tort Liability Practice (4th ed. 2010) Specific Liabilities and Immunities, §§ 11.31, 11.32, pp. 750-751.) As the court explained in Hughes v. County of San Diego (1973) 35 Cal.App.3d 349, 352, "The statute allows prisoners to sue the individual prison officials for their injuries, but prevents suit against the public entity. . . . Because he will be personally responsible for any liability he incurs, the individual prison official may be more cautious in performing his duties. This extra caution might reduce the number of prisoner injuries resulting from official misfeasance." (See Datil v. City of Los Angeles (1968) 263 Cal.App.2d 655, 659 [affirming dismissal of city under § 844.6 while noting "the complaint did not join as defendants any police officer or jail employee or plead any alternative theory of liability"].)

Although a governmental entity is entitled to immunity against a claim for liability made by a prisoner, that immunity is subject to exceptions that include injuries actionable under Vehicle Code section 17001 et seq. (Gov. Code, § 844.6, subd. (b) ["Nothing in this section affects the liability of a public entity under [Veh. Code, § 17000 et seq.]"]; see Thomas v. City of Richmond (1995) 9 Cal.4th 1154, 1160-1161 [Gov. Code, § 844.6 immunity expressly yields to liability under Veh. Code, § 17001].) Vehicle Code section 17001 provides that "[a] public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment."

In the present case, appellant alleged he was injured as a proximate result of the operation of the van by Spurrier and Rosa, who were County employees acting in the course and scope of their employment. "Operation" has been construed to be a broader concept than merely "driving." One can "operate" a vehicle even though the vehicle is not in motion and the engine is not running. (Cabral v. Los Angeles County Metropolitan Transportation Authority (1998) 66 Cal.App.4th 907, 913-914 (Cabral) ["operate" is ordinary word that means "`to cause to function'"; opening door of parked vehicle to exit deemed "operation" of vehicle].) "Operation includes stopping, parking on the highway, and other acts fairly regarded as a necessary incident to the driving of the vehicle. [Citation.]" (Ibid.; see also Marshall v. County of Los Angeles (1955) 131 Cal.App.2d 812, 814 [county liable to prisoner for injury resulting from negligent operation of parked dump truck by fellow prisoner's tilting truck bed and making it go backward and forward rapidly in order to dislodge load]; Goody v. City of El Cajon (1961) 196 Cal.App.2d 6, 7, 9 [officer "operated" car when he entered plaintiff's car and accelerated engine to test muffler and car suddenly jumped six feet causing injury to plaintiff].)

The act of strapping or not strapping a van passenger's wheelchair to the vehicle in preparation for transporting him is part of "operating" the van, even though the vehicle is not yet in motion. Further acts in driving the van negligently, such as by sudden stops or starts or by running red lights, are also part of "operating" the vehicle. Moreover, because "operation" of the vehicle can include acts by one other than the actual driver of the vehicle, at the pleading stage it is not necessary to specify which of the two employees did the actual driving. (See Duarte v. City of San Jose (1980) 100 Cal.App.3d 648, 658 [officers' placing arrestee unrestrained and unattended in rear of patrol car with motor running, apparently in preparation for transporting him, was "operation" of vehicle; entity liable when arrestee stole patrol car and attempted to make a high speed getaway, injuring plaintiff], disapproved on another point in Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 925-926.)

The trial court therefore erred in ruling respondents are immune from liability under section 844.6.

C. Section 820.2 Immunity Is Inapplicable

In Caldwell v. Montoya (1995) 10 Cal.4th 972, 981 (Caldwell ), the court explained that for discretionary immunity section 820.2 distinguishes between the "planning" and "operational" functions of government. Discretionary immunity is reserved for those "basic policy decisions" that have been expressly committed to coordinate branches of government and as to which judicial interference would be unseemly. (Caldwell, at p. 981.) There is no basis for immunizing lower-level, or "ministerial" decisions that merely implement an already formulated basic policy. (Ibid.) Discretionary immunity applies only to deliberate and considered policy decisions, in which there is a conscious balancing of risks and advantages. (Ibid.)

In the present case, any decision to secure or to not secure appellant's wheelchair in the van to prevent it from tipping over during appellant's transport was an operational decision rather than a policy decision. A policy decision might involve whether to install anchors for wheelchairs in vans or to mandate that prisoners be secured in a manner to prevent the type of injury suffered by appellant here. Further, a decision whether to drive reasonably and safely in the transport of a prisoner is not the type of quasi-legislative policy decision that the discretionary immunity statute is intended to protect. (See, e.g., Barner v. Leeds (2000) 24 Cal.4th 676, 686 [once public employee undertakes to render service, he or she is not immune from negligent performance of professional duties not amounting to policy or planning decisions]; McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 261-262 [no immunity for police officer's negligence in conduct of traffic investigation].) The act of transporting a prisoner in a van is a routine operational function performed by prison personnel in the course of their duties.

In governmental tort cases, the rule is liability, and immunity is the exception. (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 793-794 [municipal bus driver's decision not to intervene in altercation between passengers was "ministerial" act not subject to discretionary immunity].) Respondents Spurrier and Rosa had no section 820.2 discretionary immunity under the pleaded facts. The trial court therefore erred in sustaining the demurrer to the second amended complaint on this basis. Because Spurrier and Rosa were not immune from liability under section 820.2, the County too would be liable under section 815.2.

Because appellant sufficiently pleaded at least one cause of action the trial court should not have dismissed his entire action. As we discuss, to the extent the court based its dismissal on the delay in filing the second amended complaint, such dismissal was improper.

4. The Short Delay in Filing the Second Amended Complaint Did Not Warrant Dismissal

Appellant additionally contends that the trial court abused its discretion in dismissing the entire action to the extent it was based on appellant's filing of his amended pleading one court day too late. We agree.

The trial court purportedly ultimately did not rule on respondents' motion to strike the second amended complaint, finding the matter moot. In its oral comments, however, the court tentatively granted the motion to strike without leave to amend, but then chose to address the demurrer to the second amended complaint on the merits.

While not labeled as such, the opposition to respondents' motion to strike could be construed as a motion under Code of Civil Procedure section 473.13

Appellant's counsel essentially sought leave to file a late pleading due to the mistake, inadvertence or excusable neglect of either his legal assistant or attorney service in failing to ensure the second amended complaint was timely filed within 10 days after notice of the trial court's order granting 10 days' leave to file an amended pleading. That request basically invoked the court's power to allow appellant to amend his pleading "in furtherance of justice."

Moreover, Code of Civil Procedure section 473, subdivision (b) provides for both discretionary and mandatory relief for a party from a dismissal, order, or other proceeding taken against him or her. Mandatory relief is available "whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect . . . ." If the prerequisites for mandatory relief under section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612 (Leader).) To the extent the applicability of the mandatory relief provision does not turn on disputed facts, the issue presents a pure question of law subject to de novo review. (Ibid.; Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399 (Carmel).)

Stephen Counts, counsel for appellant, offered a declaration stating that he finalized a second amended complaint on Thursday, August 13, 2009 (the day before the pleading had to be served and filed), before embarking on a 10-day vacation. Counts turned over the second amended complaint to his paralegal on August 13 with the instruction that the pleading had to be filed with the court on Friday, August 14. Counts instructed the paralegal to use a particular attorney service and to specify "same-day filing." Counts then left on his vacation. When he returned to the office after his vacation, Counts discovered respondents had already served a demurrer and motion to strike.

The paralegal also provided a declaration stating that he had been instructed to arrange for the filing of the amended pleading by the end of the day on August 14, 2009. He stated he filled out a "buck slip form" and called the attorney service for a pickup of the second amended complaint. The paralegal indicated he gave oral instructions to the courier and his supervisor that the second amended complaint had to be filed by the end of the day on August 14. Significantly, however, the "buck slip form" inquired "Do Today[?]," and the circle for "No" was chosen. The pleading was not filed until August 17, one court day late.

Thus, although the evidence indicated the second amended complaint was timely prepared on August 13, 2009, either by mistake, inadvertence, surprise or neglect of counsel's paralegal or attorney service the document was not filed by the end of the day on August 14. The evidence also established that neither appellant nor his counsel was responsible for the delayed filing on August 17. Under the circumstances, mandatory relief from the late filing was warranted. To the extent the trial court did so, it was error for the court to order appellant's complaint stricken on such a technicality.14

DISPOSITION

We affirm the judgment insofar as it sustains the demurrer to the first cause of action in the second amended complaint without leave to amend and otherwise reverse. Appellant is to recover costs on appeal.

WE CONCUR:

BIGELOW, P. J.

GRIMES, J.