Unreported / Non-Citable
Background
Jonathan Cerreta filed this action in San Diego Superior Court, alleging several causes of action arising from the termination of his employment, and the defendants removed it to the U.S. District Court for the Southern District of California based on diversity jurisdiction. The defendants then filed motions to dismiss and to strike portions of the complaint. The original motions contained an attorney's signature that differed from the name of the filing attorney, so the defendants refiled identical motions the next day with the correct name; the court construed the later filings as superseding and terminated the originals as moot.
The motions were initially set for a July 13, 2026 hearing, with oppositions due June 29, 2026. On June 26, 2026, the parties jointly moved to continue, and the court reset the hearing to August 17, 2026, making oppositions due August 3, 2026. On July 10, 2026, new counsel appeared for Cerreta and prior counsel withdrew, but no opposition was filed by the deadline. On August 19, 2026, Cerreta filed a motion incorrectly labeled as a motion to remand, which the court terminated as moot after he filed a corrected motion on September 17, 2026 seeking leave to file a first amended complaint and an extension of time to oppose based on excusable neglect from the counsel change. The defendants opposed, and Cerreta never requested more time to oppose the motion to strike.
The Court’s Holding
The court applied the Rule 12(b)(6) standard, under which a pleading must contain enough facts to state a plausible claim for relief, with material allegations taken as true and construed in the plaintiff's favor, and it noted the broad discretion to grant leave to amend unless defects cannot possibly be cured. It then explained that the Ninth Circuit has recognized that a district court may grant a motion to dismiss based on a party's failure to oppose, citing Ghazali v. Moran, and that Civil Local Rule 7.1(f)(3)(c) provides that a failure to file opposing papers may constitute consent to the granting of a motion. Because Cerreta failed to timely oppose either motion — a failure compounded by the court's earlier extension of the hearing date — the court granted both the motion to dismiss and the motion to strike.
Because Cerreta had not previously amended the complaint, the court granted him leave to amend the complaint in its entirety rather than dismissing with prejudice. On his own motion, the court granted in part and denied in part: it granted the request for leave to amend and denied as moot the request for an extension of time to oppose the motion to dismiss. The court ordered Cerreta to file an amended complaint no later than October 28, 2026.
Key Takeaways
- A plaintiff's failure to file any opposition to a motion to dismiss or strike can be treated as consent to the motion under Southern District of California Civil Local Rule 7.1(f)(3)(c) and Ninth Circuit precedent such as Ghazali v. Moran.
- Missing a briefing deadline after already receiving one continuance weighed against the plaintiff, even where the miss was attributed to a change in counsel and excusable neglect.
- Dismissal for failure to oppose did not end the case: because the plaintiff had never amended, the court granted leave to amend the complaint in its entirety under the liberal amendment standard.
- The court granted the plaintiff's request for leave to amend but denied as moot his request for an extension of time to oppose, and set October 28, 2026 as the deadline for the amended complaint.
- Refiling motions to correct a signature defect terminated the earlier versions as moot, and a mislabeled 'motion to remand' was superseded by a later corrected filing.
Why It Matters
The order is a practical reminder that in the Southern District of California, ignoring a motion to dismiss can function as consent to its granting, and that excusable-neglect explanations tied to a change in counsel may not excuse a complete failure to brief, especially after a continuance has already been granted. At the same time, it illustrates the Ninth Circuit's liberal amendment policy: even after granting dismissal and a motion to strike, the court gave the plaintiff a full opportunity to replead rather than dismissing with prejudice.
The decision resolved the motions on procedural grounds without reaching the merits of the underlying employment claims, leaving the substance of the termination dispute to be tested, if at all, against an amended complaint due October 28, 2026.