Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 06CC08435, Clay M. Smith, Judge.
Law Offices of Gary E. Mastin & Associates and Gary E. Mastin for Plaintiffs and Appellants.
Feldsott & Lee and Gregory S. Lew for Defendants and Respondents James W. Naegle and Monica A. Naegle.
No appearance for Defendants and Respondents Alan Van De Vort & Associates, Tierra Laguna Realty and Fidelity Title Company.
OPINION
FYBEL, J.
INTRODUCTION
Hoan Van Nguyen and Thanh Thuy Nguyen (plaintiffs) filed a complaint against defendants Alan Van De Vort & Associates, Tierra Laguna Realty, Fidelity Title Company, James W. Naegle, and Monica A. Naegle for breach of contract, fraud, negligent misrepresentation, and breach of fiduciary duty. James Naegle and Monica Naegle (the Naegles) demurred to the complaint. The trial court sustained the demurrer as to the first three causes of action with leave to amend, and sustained the demurrer as to the fourth cause of action without leave to amend.
The Naegles thereafter filed a motion to dismiss the action on the ground plaintiffs failed to timely amend the complaint. Although the trial court stated the Naegles had established ground for dismissal, the court gave plaintiffs one final opportunity to amend the complaint within 10 days of the hearing on the motion. On the 10th day following the hearing, plaintiffs filed the first amended complaint, but failed to serve it on the Naegles. The trial court dismissed the case with prejudice, and plaintiffs appealed.
Plaintiffs contend (1) the trial court erred by sustaining the demurrer as to the first three causes of action of the complaint; (2) the trial court abused its discretion by dismissing the action as to the Naegles; and (3) the trial court erred by dismissing the entire action as Alan Van De Vort & Associates, as opposed to dismissing the action with regard to the Naegles only. We affirm in part and reverse in part with directions.
First, once plaintiffs filed a first amended complaint, that complaint superseded the original complaint. Plaintiffs were thereafter barred from challenging the trial court’s ruling on the Naegles’ demurrer to the complaint. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962.) We therefore do not review the merits of the trial court’s order sustaining the Naegles’ demurrer to the complaint.
Second, the trial court would not have abused its discretion in granting the Naegles’ motion to dismiss the complaint under Code of Civil Procedure section 581, subdivision (f)(2). (All further statutory references are to the Code of Civil Procedure.) Instead of dismissing the action at the hearing on that motion, the court gave plaintiffs one more chance to amend within 10 days. The trial court did not abuse its discretion by dismissing the action with prejudice as to the Naegles after plaintiffs filed the first amended complaint that contained a deficient proof of service and failed to serve the Naegles with a copy of that complaint.
Finally, we cannot tell from the record whether the trial court intended to dismiss the action as to Alan Van De Vort & Associates. Although the only defendants specifically identified in the trial court’s dismissal order are the Naegles, the order also broadly states, “[p]laintiffs[’] pending action is dismissed with prejudice,” thereby suggesting the action was dismissed as to defendants other than the Naegles. If the trial court intended to dismiss the entire action as to all defendants, it was without authority to do so. We therefore reverse the order to the extent it dismisses the action as to Alan Van De Vort & Associates, and direct the trial court to clarify the scope of the dismissal order to limit the dismissal of plaintiffs’ action with prejudice as to the Naegles.
BACKGROUND
A.
Plaintiffs File Complaint; Defendant Alan Van De Vort & Associates File Answer; the Naegles File Demurrer.
In July 2006, plaintiffs filed a complaint for (1) breach of contract, (2) fraud, (3) negligent misrepresentation, and (4) breach of fiduciary duty against defendants Alan Van De Vort & Associates, Tierra Laguna Realty, Fidelity Title Company, and the Naegles. The complaint alleged plaintiffs agreed to purchase several apartment units in Garden Grove and entered into a purchase agreement with “the defendants.” The complaint further alleged, “defendants rushed plaintiffs into quickly closing escrow on said property due to the defendants’ desire to dispose of said property which the defendants knew or had reason to know were in violation of various building code regulations.” In October 2006, Alan Van De Vort & Associates filed an answer to the complaint.
Plaintiffs do not include defendants Tierra Laguna Realty or Fidelity Title Company in their appellate briefs; neither defendant has appeared in this action. We therefore do not further consider those two defendants in this opinion.
The Naegles filed a demurrer to the complaint challenging all the causes of action on the grounds they were uncertain and unintelligible, and further challenging the fourth cause of action on the ground the complaint did not state facts sufficient to state a claim for breach of fiduciary duty. On January 12, 2007, the trial court sustained the Naegles’ demurrer as to the first, second, and third causes of action with leave to amend within 25 days of the hearing. The trial court sustained the demurrer as to the fourth cause of action without leave to amend. On January 15, the Naegles served by mail notice of the court’s ruling on the demurrer.
The Naegles also filed a motion to strike references in the prayer for relief to a fifth cause of action because the complaint did not contain a fifth cause of action. After sustaining the demurrer, the trial court deemed the motion to strike moot. No issue regarding the trial court’s ruling as to the motion to strike has been raised in this appeal.
B.
Trial Court Issues Order to Show Cause Regarding Dismissal for Plaintiffs’ Failure to Appear; the Naegles File Motion to Dismiss on Ground Plaintiffs Failed to Timely Amend Complaint.
On February 7, 2007, the trial court issued an order to show cause regarding dismissal and sanctions for plaintiffs’ failure to appear at a hearing; the hearing on the order to show cause was scheduled for March 14. On February 8, the Naegles filed a motion for an order dismissing the action in its entirety as to the Naegles because plaintiffs failed to amend the complaint within 25 days of the hearing on the demurrer. On February 21, Alan Van De Vort & Associates filed a notice of joinder in the Naegles’ motion to dismiss, seeking an order dismissing the action as to Alan Van De Vort & Associates as well. Hearing on the motion to dismiss was set for March 16.
C.
Trial Court Denies Plaintiffs’ Ex Parte Application Seeking Leave to File Amended Complaint; Plaintiffs File Late Opposition to the Naegles’ Motion to Dismiss.
On March 12, 2007, the trial court denied plaintiffs’ ex parte application and motion for leave to file a first amended complaint. After learning that plaintiffs had failed to notify the Naegles of the nature and purpose of the ex parte hearing, and that plaintiffs failed to serve the Naegles with copies of all the documents submitted in support of the application, the trial court stated to plaintiffs’ counsel: “I mean this in a constructive way. You need to get control over the things that are occurring in your office. We’re all here conducting this hearing because you didn’t get calendared your obligation—I should say your right to file an amended complaint. So the time elapsed, and now you gave a defective notice of this ex parte hearing to the other side. You just gave them notice there was a hearing without telling them what it was all about. [¶] When they pointed that out, that got corrected, but now we’re here conducting the hearing, and I find that the defendants did not even receive copies of the key declarations, the only evidence on which I could grant relief under section 473. They’re entitled to see these things. They’re entitled to see them before the hearing for a lot of reasons, one of which is that our time is valuable; your time, the court’s time, [the Naegles’ counsel]’s time. And to conduct the hearing and find out during the hearing that you didn’t serve all the papers, including the evidentiary content of the papers is a waste of everyone’s time. [¶] More important than that, it’s a violation of their due process rights. They have a right before the hearing to prepare an opposition that’s based upon your moving papers, including the evidentiary papers. They didn’t have that. So when they prepared their response, they didn’t even have the benefit of seeing the exact evidence that the court is looking at. That makes that material an improper ex parte communication also. I don’t have any choice here, sir. This ex parte application is denied.”
On March 13, 2007, plaintiffs filed an opposition to the motion to dismiss and filed a response to the court’s order to show cause regarding dismissal and sanctions. Plaintiffs submitted the declaration of Lien Tran, the manager of plaintiffs’ counsel’s law firm, in which Tran stated she “inadvertently failed to calendar the date to remind [counsel] of the deadline for filing the First Amended Complaint.” She further stated, “[s]ubsequently, I went on a trip to Vietnam, and there was no one following up on the mails and calendaring system.”
The Naegles objected to Tran’s declaration on grounds including: (1) it was not filed and served at least nine court days before the noticed hearing, in violation of section 1005; (2) it neither stated that it was made under the laws of the State of California nor identified the place it was executed, in violation of the mandatory provisions under section 2015.5; and (3) portions of it were irrelevant, contained improper conclusions and opinion, lacked necessary foundation, and exceeded the scope of Tran’s personal knowledge.
D.
Trial Court Does Not Dismiss Case at Hearing on Order to Show Cause; Court Denies Plaintiffs’ Second Ex Parte Application Seeking Leave to File First amended Complaint.
The trial court held a hearing on the order to show cause regarding dismissal and sanctions on March 14, 2007. At the hearing, the court stated, “the procedural problems in this case have arisen because of multiple errors in plaintiffs[’] counsel’s office. Those errors have resulted in an amended complaint not being timely filed” and “other calendaring problems, including plaintiffs’ failure to attend a case management conference; is that right, [plaintiffs’ counsel]?” Plaintiffs’ counsel responded, “[t]hat is correct.” The court further stated, “I have absolutely no intent to embarrass you in any way, but I’d like you to just think about what these calendaring problems have caused here. I know that [the Naegles’ counsel] has—probably by this afternoon he will have probably made at least three unnecessary court appearances, the court will have handled this matter unnecessarily at least three times, including two ex parte matters and this [order to show cause]. There’s been a tremendous cost to yourself, tremendous cost to the opposing counsel and parties and is a significant cost in time and resources to the public that we’ve devoted to this. [¶] I mention that your client has been at risk of being severely prejudiced by having the case set for potential dismissal because of your failure to appear at court appearances, your failure to file responsive pleadings. The only reason that I am going through this litany with you, the only reason again is not to embarrass you, is to try and impress upon you that you have got to get control of your office. This is not a minor problem.” The court stated it was not going to dismiss the matter but was going to impose a monetary sanction of $100 made payable to the clerk of the court and a second monetary sanction of $100 made payable to the Naegles’ counsel.
Later in the morning on March 14, 2007, the trial court conducted a hearing on a second ex parte application submitted by plaintiffs seeking leave to file a first amended complaint. The Naegles’ counsel objected to declarations submitted in support of the ex parte application on the grounds that the declarations did not state where they were executed or under what laws, or that they were executed under penalty of perjury. The trial court sustained the Naegles’ objections. The trial court denied plaintiffs’ ex parte application, stating, “[t]here isn’t even a valid declaration regarding notice. . . . There just isn’t grounds here for your application.”
E.
Trial Court Denies the Naegles’ Motion to Dismiss and Gives Plaintiffs 10 Days to File Amended Complaint.
The hearing on the Naegles’ motion to dismiss was held on March 16, 2007. The trial court denied the motion and issued a minute order stating: “1. Defendants Naegle[s’] motion to dismiss: [¶] Defendants move to dismiss the case because of Plaintiffs’ failure to file an amended complaint within the time allowed by the Court. Plaintiffs did not file a timely opposition to this motion. In what can only be described as an example of irony, Plaintiffs filed a substantially late opposition to this motion. In addition to being tardy, the opposition presents a memorandum of points and authorities which does not fit the opposition and was apparently just borrowed from a related ex parte application. Although Defendants are entitled to dismissal of the matter, it certainly appears from Plaintiffs’ declarations that they would be entitled to relief under [section] 473 based upon their attorney’s fault. Thus, in the interest of judicial economy, Plaintiffs are hereby granted 10 calendar days from the date of this hearing within which to file an amended complaint. If they fail to do so, Defendants may file and serve a declaration so indicating and the Court will dismiss the matter without further proceedings. [¶] Plaintiff[s are] ordered to pay fees and costs in the amount of $2500 to defendants Naegle within 30 days for the reasons stated on the record. [¶] 2. Defendant Alan Van de [V]ort & Associates’ joinder in the motion to dismiss: [¶] The defendant has answered the complaint and the matter is at-issue as to this defendant. There are no grounds to dismiss as to this moving party. The motion is denied.”
At the hearing, the trial court also invited the Naegles’ counsel to file a separate order. On April 4, 2007, the trial court signed an order prepared by the Naegles’ counsel, which stated plaintiffs’ first amended complaint “is to be filed and served within ten (10) days of March 16, 2007. If the First Amended Complaint is not filed and served on or before March 26, 2007, the Court will dismiss the pending action in its entirety upon submission of a declaration by counsel for defendants JAMES W. NAEGLE and MONICA A. NAEGLE providing for plaintiffs’ counsel’s failure to file and/or serve such First Amended Complaint on or before March 26, 2007, without the necessity of any further hearings or process herein.”
F.
Plaintiffs File First Amended Complaint with Deficient Proof of Service and Fail to Timely Serve the Naegles.
On March 26, 2007, plaintiffs filed a first amended complaint. The attached proof of service, however, did not state that defendants were served with the first amended complaint as required by section 471.5.
The Naegles’ counsel filed a declaration on March 28, 2007, stating the Naegles had not yet been served with a first amended complaint. Apparently unaware plaintiffs had filed a first amended complaint on March 26, the Naegles’ counsel also stated, based on his search of court records, that plaintiffs had also failed to file a first amended complaint.
The Naegles’ counsel filed a supplemental declaration stating plaintiffs’ first attempted service on the Naegles occurred on April 4, 2007, when “a messenger service purported to personally serve Plaintiffs’ First Amended Complaint and Summons thereon on Defendants’ counsel, at Defendants[’] counsel’s office.” Alan Van De Vort & Associates’ counsel similarly filed a declaration stating that “on April 4, 2007, a process serve[r] purported to personally serve Plaintiffs’ First Amended Complaint and Summons on Van De Vort & Associates’ Counsel’s office.” He further stated, “[n]o prior service of such First Amended Complaint and Summons thereon was previously effected on Defendant or its counsel notwithstanding this Court’s order that such service be effected on or before March 26, 2007.” Neither counsel for the Naegles nor counsel for Alan Van De Vort was served with a copy of the first amended complaint through the mail.
G.
Trial Court Dismisses Action with Prejudice; Plaintiffs Appeal.
The trial court issued an order to show cause regarding dismissal and set the matter for hearing on May 3, 2007. At that hearing, the court dismissed “[t]he matter” with prejudice. Following the hearing, the court issued a minute order, stating, “[t]he Court dismisses this case in its entirety with prejudice.” The court also signed a separate order prepared by the Naegles’ counsel, which stated in part, “[p]laintiffs failed to effect service of any first amended complaint on Defendants JAMES W. NAEGLE and MONICA A. NAEGLE, in the within matter on or before March 26, 2007, notwithstanding this Court[]’s pending order that they do so.” The order further stated: “1. Plaintiffs[’] pending action is dismissed with prejudice; and [¶] 2. Defendants JAMES W. NAEGLE and MONICA A. NAEGLE are deemed to be prevailing parties herein for all intents and purposes.”
On June 1, 2007, plaintiffs filed a notice of appeal as to the trial court’s May 3, 2007 order dismissing the action with prejudice.
The record contains the Naegles’ opposition to plaintiffs’ motion for reconsideration. The record does not contain plaintiffs’ moving or reply papers or any ruling by the trial court. Because plaintiffs do not raise any issue related to the trial court’s ruling on any such motion in this appeal, we do not consider it further.
APPEALABILITY
Section 581d provides in relevant part: “All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes, and the clerk shall note those judgments in the register of actions in the case.” (See Cano v. Glover (2006) 143 Cal.App.4th 326, 328, fn. 1 [“An involuntary dismissal effected by a minute order signed by the trial court is an appealable order”].) Here, plaintiffs appeal from a written order of dismissal that was signed by the trial court and filed. The order, therefore, was appealable under section 581d.
DISCUSSION
Plaintiffs argue (1) the trial court erred by sustaining the Naegles’ demurrer as to the first, second, and third causes of action of the complaint because they were not uncertain; (2) the trial court abused its discretion by dismissing the action against the Naegles with prejudice following plaintiffs’ failure to serve the first amended complaint by March 26, 2007; and (3) the trial court erred by dismissing with prejudice the entire action as to Alan Van De Vort & Associates, as opposed to dismissing the action with regard to the Naegles only. We address each argument in turn.
A.
Plaintiffs Waived Any Challenge to the Trial Court’s Order Sustaining the Naegles’ Demurrer to the Complaint by Filing the First Amended Complaint.
Plaintiffs argue the trial court erred by sustaining the Naegles’ demurrer to the first, second, and third causes of action in the complaint on the ground of uncertainty. The complaint, however, was superseded by the filing of the first amended complaint on March 26, 2007, and thereafter “‘“cease[d] to perform any function as a pleading.”’” (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1144; see Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4th 1300, 1307 [after appellants filed a fourth amended complaint, they could not appeal from any rulings involving the third amended complaint because “it was superseded and no appeal lies therefrom”].)
Citing Sheehy v. Roman Catholic Archbishop (1942) 49 Cal.App.2d 537, 540-541, the California Supreme Court in Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th 962, 966, footnote 2, stated, “[w]e have no occasion in this case to decide whether the trial court was correct in sustaining the [cross-defendant]’s demurrer to the [cross-complainant]’s first amended cross-complaint. Rather than appealing the trial court’s order, the [cross-complainant] chose to amend its complaint. By doing so, it waived its right to appeal any error in the sustaining of the first demurrer.”
We therefore do not further consider plaintiffs’ challenges to the trial court’s order sustaining the demurrer to the complaint.
B.
The Trial Court Did Not Abuse Its Discretion in Dismissing This Action as to the Naegles.
Section 581, subdivision (f)(2) provides that a trial court “may dismiss the complaint as to that defendant,” 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.” A trial court’s dismissal under section 581, subdivision (f)(2) is with prejudice. (Cano v. Glover, supra, 143 Cal.App.4th 326, 328-330, 332 [appellate court reversed trial court’s order under section 581, subdivision (f)(2) dismissing action without prejudice, and remanded to the trial court with directions to enter dismissal with prejudice].)
Furthermore, “[a] trial court’s determinations to deny leave to file a belated amended pleading under section 473, subdivision (a)(1) [citation], to strike a pleading under section 436 [citation], and to dismiss an action under section 581, subdivision (f)(2) [citation] are all reviewed for abuse of discretion. The burden is on plaintiffs to establish such abuse. [Citation.]” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.)
The trial court dismissed plaintiffs’ action against the Naegles with prejudice only after plaintiffs repeatedly failed to comply with court orders and rules. After sustaining the Naegles’ demurrer to the complaint with leave to amend as to the first three causes of actions, the trial court afforded plaintiffs 25 days from the date of the hearing to amend the complaint. Plaintiffs contend the 25-day period ran from the date they were served with the Naegles’ notice of ruling pursuant to section 472b and California Rules of Court, rule 3.1320(g), rendering February 14, 2007 as the last day they could timely file the first amended complaint. Thus, plaintiffs argue, the Naegles’ motion to dismiss was prematurely filed on February 8. Even so, the record does not show plaintiffs attempted to file an amended complaint on or before February 14. The hearing on the Naegles’ motion to dismiss was not held until March 16. Thus, plaintiffs failed to timely amend the complaint within the time period provided by the court.
As discussed, ante, the trial court was authorized to dismiss the action with prejudice because the court had sustained the Naegles’ demurrer with leave to amend, plaintiffs failed to amend the complaint within the time period allowed by the court, and the Naegles moved to dismiss the action against them. (§ 581, subd. (f)(2); Cano v. Glover, supra, 143 Cal.App.4th at pp. 328-330, 332.) We would have affirmed an order granting the Naegles’ motion had it been made. The record shows that before the hearing on the Naegles’ motion to dismiss, the court had issued an order to show cause regarding dismissal because plaintiffs failed to appear at a scheduled hearing. Instead, the court issued plaintiffs’ counsel a warning, discharged the order to show cause, and did not dismiss the action. Furthermore, plaintiffs filed their opposition to the Naegles’ motion late—they filed it three court days instead of at least nine court days before the hearing.
Notwithstanding plaintiffs’ multiple procedural failures in the case by the time of the hearing on the Naegles’ motion to dismiss, the trial court did not grant the motion at that point. Instead, the court afforded plaintiffs one more chance—to file the first amended complaint by March 26, 2007. Although plaintiffs filed a first amended complaint on March 26, there is no evidence in the record it was served.
Plaintiffs do not contend they were required to only file the first amended complaint and not also serve the Naegles with a copy of it by March 26. Indeed, section 471.5, subdivision (a) provides in part: “If the complaint is amended, a copy of the amendments shall be filed . . . and a copy of the . . . amended complaint must be served upon the defendants affected thereby.” Instead, plaintiffs contend they did timely serve the Naegles with a copy of the first amended complaint.
In the opening brief, plaintiffs argue, “the First Amended Complaint was, in fact, duly served and filed within the time limit of the trial court’s March 16, 2007 order. [¶] Logically, having gone to the trouble of preparing a First Amended Complaint, attaching a proof of service by mail, and filing it with the court, it is extremely improbable that former counsel for Appellants would not have taken the additional step of placing the document in the mail, as we explicitly stated to have been done under penalty of perjury.”
The form proof of service attached to the first amended complaint filed by plaintiffs is signed by Jackie Pham and states, “[o]n March 26, 2007, I served the foregoing documents described as: [¶] SUMMONS ON FIRST AMENDED COMPLAINT,” but fails to state how or upon whom service was effected. Counsel for the Naegles and Alan Van De Vort & Associates submitted declarations stating they had not received a copy of the first amended complaint in the mail. In their declarations, counsel further stated that the first time plaintiffs attempted to effect service was on April 4. Plaintiffs did not offer any evidence to the trial court showing they served defendants by mail or otherwise before April 4.
On this record, we cannot conclude the trial court abused its discretion by dismissing plaintiffs’ action against the Naegles with prejudice.
C.
We Remand to the Trial Court to Clarify Plaintiffs’ Case Is Dismissed with Prejudice as to the Naegles but Not Dismissed with Regard to Alan Van De Vort & Associates.
Plaintiffs contend that because there was no basis for the trial court to dismiss the action as against Alan Van De Vort & Associates, the court erred by dismissing the entire action with prejudice. Alan Van De Vort & Associates has not appeared in this appeal.
Before the Naegles filed their demurrer, Alan Van De Vort & Associates filed an answer to the complaint. At the hearing on the motion to dismiss in March 2007, the trial court denied the motion as to the Naegles, even though they had established grounds for dismissal, because the court thought plaintiffs “would be entitled to relief under [section] 473 based upon their attorney’s fault.” The trial court granted plaintiffs 10 calendar days from the date of the hearing to file an amended complaint and further ordered that if plaintiffs were to fail to do so, the court would dismiss the matter without further proceedings. But with regard to Alan Van De Vort & Associates’ joinder in the motion to dismiss, the court denied the motion because Alan Van De Vort & Associates had answered the complaint and the matter was “at-issue as to this defendant.”
Thus, when plaintiffs failed to comply with the court’s order to file and thus also serve the first amended complaint by March 26, as discussed ante, the court was within its discretion to dismiss the case as to the Naegles under section 581, subdivision (f)(2), but without such statutory authority to dismiss the action as to Alan Van De Vort & Associates.
In the trial court’s May 3, 2007 dismissal order, the only defendants specifically identified are the Naegles. The order also states the Naegles “are deemed to be prevailing parties herein for all intents and purposes.” Nevertheless, the order does not expressly limit the dismissal of the action as to the Naegles only. Instead, the order broadly states, “[p]laintiffs[’] pending action is dismissed with prejudice.”
Although we cannot tell from the language of the order whether the trial court intended to dismiss the action with prejudice as to defendants other than the Naegles, a reasonable construction of the order suggests the entire action as to all defendants had been dismissed. If the court had intended to dismiss the action with prejudice as to defendants other than the Naegles, it was without authority to do so.
It is true a trial court has the power to dismiss a case under its inherent authority, but, in dismissing a case under such power, the court must consider whether the plaintiff’s conduct was severe and deliberate and whether lesser alternatives are available to remedy the situation. (§ 583.150; Lyons v. Wickhorst (1986) 42 Cal.3d 911, 917.) The record does not support dismissing the case as to Alan Van De Vort with prejudice on such a basis. We therefore remand the matter to the trial court to clarify its order accordingly, and, after confirming the first amended complaint was filed, order that plaintiffs serve the first amended complaint by a date certain.
DISPOSITION
The order is affirmed to the extent it dismisses the action against the Naegles with prejudice, and is reversed to the extent it dismisses the action against Alan Van De Vort & Associates. We remand the matter to the trial court to clarify its dismissal order to reflect plaintiffs’ action has been dismissed as to the Naegles with prejudice but has not been dismissed as to Alan Van De Vort & Associates. On remand, the trial court shall confirm the first amended complaint was filed, and order that plaintiffs serve the first amended complaint by a date certain. In the interests of justice, no party shall recover costs on appeal.
WE CONCUR: MOORE, ACTING P. J. ARONSON, J.