Judge Audra Mori, Case 19STCV13354 2022-09-28 Tentative Ruling

On April 17, 2019, Plaintiffs Sebastian Liczner, et al. filed this action against defendants Kevin Yu, Mike Froehlich, Mike Froehlich dba MF Property Management, for Southern California Edison for damages relating to a fire at a property Plaintiffs were tenants at. Plaintiffs allege the defendants’ negligence caused the fire and caused the plaintiffs emotional distress and loss of their personal property. Pursuant to a stipulation signed by the parties, Plaintiffs Sebastian Liczner and Cameron Razavi (collectively, “Plaintiffs”) filed the operative Second Amended Complaint (“SAC”) asserting a negligence claim against each defendant.

Prior to the filing of the SAC, defendant Southern California Edison Company (“SCE”) filed the instant motion to dismiss Plaintiffs’ amended complaint for delay in prosecution. On September 1, 2022, SCE filed a notice of non-opposition noting that Plaintiffs failed to file an opposition to the motion within 15 days after being serve with the motion, as required by California Rules of Court, Rule 3.1342(b). Plaintiffs then filed an opposition on September 7, 2022, and SCE filed a response to Plaintiffs’ opposition. SCE contends that Plaintiffs’ opposition was untimely and should be disregarded. Because SCE was able to address Plaintiffs’ opposition on the merits, and in the absence of any showing of prejudice, the Court exercises its discretion to consider Plaintiffs’ opposition. However, the Court will not consider any untimely surreply to SCE’s reply.

SCE asserts that trial is currently set for November 4, 2022, but Plaintiffs have not completed discovery in this matter. SCE asserts that despite all parties signing a stipulation for Plaintiffs to file the SAC in February 2022, Plaintiffs had not filed the SAC as of the filing of this motion. SCE asserts that Plaintiffs have failed to prosecute this case with reasonable diligence and have failed to bring it to trial within three years after it was commenced against SCE. SCE avers the delays are attributable solely to Plaintiffs, and that Plaintiffs can offer no reasonable excuse for their delay.

In opposition, Plaintiffs attest that the defendants were personally served with the summons and complaint within the time required but following meet and confer efforts regarding possible demurrers to the complaint, Plaintiffs filed a first amended complaint and then the operative SAC. Plaintiffs assert that certain other parties- that Plaintiffs do not identify- have not been diligent in engaging in discovery, and the delays are properly attributed to defendants other than SCE. Plaintiffs further state an extension was provided to other defendants to file an answer to the SAC, and that Plaintiffs have requested mediation of this matter.

SCE, in response, contends that Plaintiffs failed to show a reasonable excuse for the delay in bringing this action to trial because Plaintiffs have not actively prosecuted this case.

CCP § 583.410(a) states: “The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.”

(a) The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred:

(A) Three years after the action is commenced against the defendant unless otherwise prescribed by rule under subparagraph (B).

(B) Two years after the action is commenced against the defendant if the Judicial Council by rule adopted pursuant to Section 583.410 so prescribes for the court because of the condition of the court calendar or for other reasons affecting the conduct of litigation or the administration of justice.

Moreover, California Rules of Court, Rule 3.1340(a) provides, the court on its own motion or on motion of the defendant may dismiss an action under Code of Civil Procedure sections 583.410-583.430 for delay in prosecution if the action has not been brought to trial or conditionally settled within two years after the action was commenced against the defendant.

In addition, in ruling on a motion to dismiss under CCP § 583.410, the court must consider all matters relevant to a proper determination of the motion, including:

(1) The court's file in the case and the declarations and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process;

(3) The extent to which the parties engaged in any settlement negotiations or discussions;

(4) The diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party;

(6) The law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case;

(7) The nature of any extensions of time or other delay attributable to either party;

(8) The condition of the court's calendar and the availability of an earlier trial date if the matter was ready for trial;

(9) Whether the interests of justice are best served by dismissal or trial of the case; and

(10) Any other fact or circumstance relevant to a fair determination of the issue.

“ ‘The competing considerations to be evaluated are the policies of discouraging stale claims and compelling reasonable diligence balanced against the strong public policy which seeks to dispose of litigation on the merits rather than on procedural grounds.’ [Citation.] ‘However, it is now well established that the policy [of preferring to dispose litigation on the merits] only comes into play when a plaintiff makes a showing of some excusable delay.’ [Citation.]” (Van Keulen v. Cathay Pacific Airways, Ltd. (2008) 162 Cal.App.4th 122, 131.)

First, as an initial matter, the Court notes that SCE’s motion is directed at Plaintiffs “First Amended Complaint.” (Mot. at p. 10:19.) However, Plaintiffs’ operative pleading in this action is the SAC, which Plaintiffs filed pursuant to a stipulation after this motion was filed. An amended pleading supersedes all prior complaints, which cease to have any effect as a pleading. (State Comp. Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130-31; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884 [“ ‘It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.’ ”].) Because there can be only one operative pleading, “the filing of an amended complaint moots a motion directed to a prior complaint.” (State Comp. Ins. Fund, 84 Cal.App.4th at 1131.)

Accordingly, SCE’s motion directed at the prior first amended complaint is improper. While this alone provides a sufficient basis to deny SCE’s motion, the motion is also denied on the merits.

The Court does not find dismissal warranted in this matter. SCE does not dispute that Plaintiffs served the summons and complaint on SCE and other defendants in this action, and that the SAC was filed, albeit slowly, after extensive meet and confer efforts regarding the filing of an amended complaint, given challenges made to the original complaint. Furthermore, SCE acknowledges propounding discovery on Plaintiffs on June 28, 2021, and that Plaintiffs served responses to the discovery. (Mot. Hickerson Decl. ¶ 13.) To the extent that SCE contends the responses were deficient, SCE has not moved to compel further responses to the discovery. Moreover, the Court’s records show that on November 18, 2021, the parties attended a Trial Setting Conference, where Plaintiffs’ counsel and SCE’s counsel appeared, and the matter was set for trial for November 4, 2022. Additionally, Plaintiffs represent that an extension was granted to other defendants to file their answers, and so the delay is attributable to defendants other than SCE. While there is a showing of some delay in filing the SAC, SCE, at this time, does not identify any prejudice it has directly suffered as a result of the delay.

Based on the foregoing, the motion to dismiss is denied. Nonetheless, given that this action is now almost three and a half years old, Plaintiffs are put on notice that failure to prosecute this action diligently puts their case at risk for dismissal.

Hon. Audra Mori

Judge of the Superior Court