Judge Audra Mori, Case 19STCV37297 2022-08-29 Tentative Ruling

On October 18, 2021, Plaintiff Salvador Merchain, Jr. (“Plaintiff”) filed this action against defendants McDonald’s El Sereno 4310, McDonald’s Corporation, Marisol Doe for damages relating to Plaintiff’s alleged slip and fall inside defendants’ property.

At this time, Defendants P.R. Perencky Management, Corp., erroneously sued and served as McDonald’s El Sereno 4310, and Marisol De La Llava, sued and served as Marisol Doe, (collectively, “Defendants”) move to dismiss Plaintiff’s complaint for failure to prosecute.

This matter was last heard on July 27, 2022, where the Court noted that it was unclear whether Plaintiff’s counsel had effectively relieved himself as Plaintiff’s attorney of record in this matter. As a result, the hearing was continued to August 29, 2022, so that Plaintiff’s counsel and Plaintiff’s spouse could be given notice of the motion. On July 28, 2022, Defendants refiled the motion with the new hearing date and proof of service on Plaintiff’s counsel and spouse. Defendants further filed a notice of continuance with proof of service on Plaintiff’s counsel and spouse with notice of the previous continuance. Any opposition to the motion was due on before August 16, 2022. As of August 24, 2022, no opposition has been filed.

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.)

Here, Defendants aver that Plaintiff has failed to bring the case to trial within two years of its filing without reasonable excuse. Defendants provide that Plaintiff passed away after this action was filed, and that although Plaintiff’s spouse appeared at a hearing on July 28, 2021, no action has been taken to substitute Plaintiff’s estate or successor in interest in this matter. Defendants aver that Plaintiff’s estate clearly has no intention of prosecuting this case.

This action is more than two years old and has not been brought to trial or conditionally settled in that time. Aside from serving the summons and complaint on Defendants, there is no evidence that Plaintiff or Plaintiff’s estate have taken any action to prosecute this matter, despite Plaintiff’s spouse being aware of this action. (See Fleming v. Gallegos (1994) 23 Cal.App.4th 68, 75-76 [demonstration of actual prejudice to a defendant, although not required for a discretionary dismissal, strengthens the argument for dismissing an action that the plaintiff has not prosecuted with promptness or diligence].) Further, the delay in prosecution is not due to ongoing settlement discussions, the discovery extensions that were given, the complexity or law of the case, or the Court’s calendar.

Moreover, Defendants’ evidence indicates that nobody on behalf of Plaintiff’s estate is participating in this action, and thus, it appears Plaintiff’s estate has decided not to pursue this claim and has abandoned the lawsuit. This contention is supported by the fact that nobody on behalf of Plaintiff or Plaintiff’s estate has opposed the instant motion despite Plaintiff’s counsel and Plaintiff’s spouse being served with the instant motion. (Cal. Rules of Court, Rule 3.1342(b) [“The failure of the opposing party to serve and file a written opposition may be construed by the court as an admission that the motion is meritorious, and the court may grant the motion without a hearing on the merits.”].) There is no explanation provided for the delay in prosecuting the action. (See Hershman v. Bernard Homes, Inc. (1969) 1 Cal.App.3d 651, 653 [burden is on plaintiff to make showing that failure to bring action to trial within two years was due to excusable delay]; see also Lowe v. Thomas (1970) 11 Cal.App.3d 867, 869-70 [“the burden is upon a plaintiff to justify his delay in bringing the case to trial (Citation), and it is his duty ‘at every stage of the proceedings to use diligence to expedite his case to a final determination.’ ”].)

Based on the standards discussed above, Defendants’ motion to dismiss is granted. (CCP §§ 583.410(a) and 583.420(a)(2)(B); Cal. Rules of Court, Rule 3.1340(a).)

Hon. Audra Mori

Judge of the Superior Court