Judge: Anne Hwang, Case: 19STCV02804, Date: 2023-12-15 Tentative Ruling

Case Number: 19STCV02804    Hearing Date: December 15, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On January 28, 2019, Plaintiff Xacil Vazquez (Plaintiff) filed a complaint against Defendants Jose Martin Lopez Graciano, Gisela Graciano, Jose P. Arguelles, Rosa A. Arguelles, and Does 1 to 25 for negligence regarding a dog bite.

On January 26, 2022, Plaintiff was granted default judgment against Defendants Jose Martin Lopez Graciano, Gisela Graciano, Jose P. Arguelles, and Rosa A. Arguelles.

On January 18, 2023, Defendants Jose P. Arguelles and Rosa A. Arguelles’ (hereafter “Defendants”) motion to vacate judgment was granted on the basis that they were not served the summons and complaint at their correct address and lacked actual notice. (Min. Order, 1/18/23.)

On January 19, 2023, Defendants filed an answer.

At the March 15, 2023 Status Conference, the Court set the trial for March 26, 2024.

Plaintiff now moves to advance the trial date in order to conform with the five-year limit under Code of Civil Procedure section 583.310. Defendants oppose.

LEGAL STANDARD

Code of Civil Procedure section 583.310 provides that an action shall be brought to trial within five years after the action is commenced against the defendant. This requirement is mandatory and not subject to extension, excuse, or exception except as expressly provided by statute. (Code Civ. Proc., section 583.360, subd. (b).)

An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article. (Code Civ. Proc. § 583.360.)

California Rules of Court, rule 3.1335 states as follows:¿¿¿ 

¿¿ 

(a) Noticed motion or application required¿¿ 

A party seeking to advance, specially set, or reset a case for trial must make this request by noticed motion or ex parte application under the rules in chapter 4 of this division.¿¿ 

(b) Grounds for motion or application¿¿ 

The request may be granted only upon an affirmative showing by the moving party of good cause based on a declaration served and filed with the motion or application.¿¿ 

¿ 

(Cal. Rules of Court, rule 3.1335(a)-(b).)¿¿ 

“[A] trial court does not have a mandatory duty to set a preferential trial date, even when the five-year deadline approaches. Its discretion is not wholly unfettered: it must consider the “total picture,” as Wilson prescribes, including the condition of the court calendar, dilatory conduct by plaintiff, prejudice to defendant of an accelerated trial date, and the likelihood of eventual mandatory dismissal if the early trial date is denied.” (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 349.)

DISCUSSION

Here, Plaintiff filed her complaint on January 28, 2019, meaning the deadline under section 583.310 to bring this case to trial is January 28, 2024. Trial is currently set for March 26, 2024.

Judicial Council Emergency Rule 10 provides that for all civil actions filed on or before April 6, 2020, the time in which to bring the action to trial is extended by six months for a total time of five years and six months.  

As an initial matter, Plaintiff does not believe Rule 10 is applicable due to “recent legal authorities” that question its applicability. (Motion, 5.) Plaintiff does not discuss these authorities. If the Court applied Rule 10, the 5-year limit would take place on July 28, 2024. However, the Court will address Plaintiff’s arguments assuming this rule does not apply because both parties appear to take the position that it does not apply.

Here, the declaration of Terrance Allen states that between March 26, 2019 to April 22, 2019, Plaintiff had a good faith belief she had served Defendants the complaint and summons. (Allen Decl. ¶ 3.) Allen states that “after multiple attempts for entry”, the court approved default judgments on January 26, 2022. (Id. ¶ 4.) Between April 22, 2019 and January 26, 2022, no meaningful discovery took place. (Id.) After Defendants’ judgment was vacated on January 18, 2023, Defendants served discovery. Plaintiff responded and served requests on February 17, 2023. (Id. ¶ 6–7.) Defendants responded on March 20, 2023. (Id. ¶ 7.) On August 31, 2023, Plaintiff noticed the deposition of Jose Graciano, which has not yet occurred. (Id. ¶ 8.) Plaintiff’s deposition took place on September 25, 2023. (Id. ¶ 9.)  At the time of the declaration, Defendants’ deposition was scheduled and confirmed for October 9, 2023. (Id. ¶ 10.) Plaintiff seeks to depose Celia Valle, who was disclosed during Plaintiff’s deposition, but does not believe it will affect an advanced trial date. (Id. ¶ 13.)

Defendant argues that Plaintiff was in possession of Defendant’s correct address from the Animal Control Report of the subject incident.[1] (Opp., 2; Exh. 1.) This report is dated August 5, 2017. Therefore, Plaintiff had the information to properly serve Defendant sooner. Defendant also argues that Plaintiff was not diligent in deposing Celia Valle because that witness was identified on March 20, 2023 through discovery responses. They argue that Plaintiff waited until Defendants sought to set aside the default to start depositions. (Opp., 3–4.)  Defendant argues these facts show that Plaintiff has not demonstrated good cause. However, Defendant does not explain why Plaintiff was expected to start deposing witnesses if she had already secured a default judgment against Defendants.

Based on the above, the Court finds the declaration of Terrance Allen supports good cause to advance the trial date. From the time Defendants entered the litigation, it appears the parties have diligently engaged in discovery, by serving requests and responses, and scheduling the parties’ depositions. Though Defendants argue they will be prejudiced because Plaintiff is having trouble deposing a percipient witness, it is Plaintiff who will have the burden of proof at trial. Therefore, the fact that a witness cannot be deposed will also hinder Plaintiff. Additionally, it appears Defendants would file a motion to dismiss if the trial was not advanced. Therefore, in light of the circumstances, the motion to advance the trial date is granted.

CONCLUSION AND ORDER

Therefore, Plaintiff’s motion to advance the trial date is GRANTED.

The Final Status Conference is advanced to January 8, 2024 at 10:00 a.m. in Department 32 of the Spring Street Courthouse. 

Trial is advanced to January 22, 2024 at 8:30 a.m. in Department 32 of the Spring Street Courthouse. 

Plaintiff shall provide notice of the Court’s ruling and file a proof of service of such.