Judge Bruce G. Iwasaki, Case Number: 20STCV19454, Date: 2023-05-16 Tentative Ruling

Responding Party: None

Tentative Ruling: Pending further hearing

This is a survivor’s action for medical malpractice. On May 20, 2020, Plaintiff Steve Simmons (“Plaintiff”) filed a complaint against Defendants Kindred Hospital,[1] Dr. Banafshe, and Nurse Precious for general negligence based on the death of Plaintiff’s spouse in April 2019.

On January 9, 2023, Defendant Dr. Paymon Banafshe (“Defendant”) was substitute served with the summons and complaint for this action. On February 10, 2023, Defendant filed the instant motion to dismiss for delay in service of summons and complaint under Code of Civil Procedure sections 583.410 and 583.420(a)(1) and California Rules of Court, Rule 3.1342. Plaintiff has not opposed the motion.

“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.” (CCP § 583.410.)

“The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred: (1) Service is not made within two years after the action is commenced against the defendant.” (CCP § 583.420(a)(1).)

“In ruling on the motion [to dismiss for delay in prosecution], 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 court must be guided by the policies set forth in Code of Civil Procedure section 583.130.”

“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.” (CRC Rule 3.1324(b).)

A party’s lack of diligence is a significant factor when assessing whether to dismiss for failure to prosecute. (See Seto v. Szeto (2022) 86 Cal.App.5th 76, 101-102.) “A plaintiff is required to make some showing of excusable delay when he or she has failed to effect service within the two-year period of section 583.420, subdivision (a)(1).” (Clark v. Stabond Corp. (2d Dist. 1987) 197 Cal.App.3d 50, 55.)

Defendant moves to dismiss this action under Code of Civil Procedure sections 583.410 and 583.420(a)(1), contending that the incident underlying Plaintiff’s allegations occurred four years ago and that Plaintiff did not serve Defendant with a copy of the summons and complaint until January 9, 2023, more than two and a half years after the Complaint was originally filed on May 20, 2020. Defendant contends that this is an extraordinary delay warranting dismissal per Code of Civil Procedure section 583.420(a)(1), as this would require Defendant to defend a case arising out of medical treatment rendered four years ago, which would be prejudicial to Defendant.

The Court agrees that this matter falls under Code of Civil Procedure section 583.420(a)(1), as the record shows Plaintiff did not effect service of process on Defendant until January 9, 2023, more than two and a half years after filing the summons and complaint. The Court must now consider all of the relevant factors set forth under Rule 3.1324(e) of the California Rules of Court.

First, Defendant has not presented any evidence regarding his availability to receive service of process during the period in question, but there also does not appear to be any evidence otherwise indicating that Defendant was unavailable either. Second, the record does show that Plaintiff did previously attempt to effect service of process on Defendant, as evidenced by a proof of service filed with the Court on January 21, 2022, which indicates service at the same address as the January 9, 2023 proof of service. However, the January 21, 2022 proof of service is defective, as it does not identify who was purportedly served.

Third, there is nothing to suggest here that the parties engaged in settlement negotiations or discussions. Fourth, there is nothing in the record to suggest the parties otherwise have engaged in pretrial proceedings or discovery. Fifth, the case does not appear to be particularly complex, as it is a survivor’s action based on medical malpractice, but medical malpractice cases are not necessarily straightforward either and often require the opinions of expert witnesses for their resolution. Sixth, there does not appear to be any other pending litigation under a common set of facts that would be determinative of issues in this case.

Seventh, there do not appear to have been any extensions granted in this matter, and it is unclear what the basis for the delay has been, as Plaintiff has not presented any evidence explaining the delay. Eighth, this matter has not been ready for trial at any point in time thus far, so this factor does not apply. Ninth, the policy of favoring a disposition of a case on its merits would generally favor having this matter tried instead of dismissed. (See CCP § 583.130.) However, the policy favoring disposition on the merits will not prevail unless Plaintiff makes some showing of excusable delay. (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 347.) As noted above, Plaintiff has not presented any evidence explaining or excusing the delay in this matter.

Tenth, as for any other factors, the Court notes that while Plaintiff failed to serve Defendant with a copy of the summons and complaint within two years of the filing of the Complaint, Defendant was eventually served. The fact that it was after the two-year mark does not necessarily mandate a dismissal. (See Bergloff v. Reynolds (1960) 181 Cal.App.2d 349, 359 [trial court’s denial of motion to dismiss for lack of prosecution when matter had approached five-year mandatory dismissal deadline held not to be an abuse of discretion].)

Considering the foregoing, the Court finds that dismissal of this action is likely warranted. Per Clark, supra, 197 Cal.App.3d at p. 55, Plaintiff bears the burden of establishing excusable delay in this case and, in failing to oppose the motion, Plaintiff has presented no evidence of excusable delay. He has also tacitly conceded that Defendant’s motion is meritorious. (CRC Rule 3.1342(b).) The record otherwise contains little evidence of Plaintiff attempting to affect service of process on Defendant and the only item in the record showing some effort is the defective proof of service filed with the Court on January 21, 2022. Additionally, it is now four years since the alleged incident occurred in April 2019, which would undoubtedly be prejudicial to Defendant in this matter.

Nevertheless, despite Plaintiff’s failure to submit an opposition, the Court will hear testimony and argument regarding excusable delay at the hearing on this motion.

[1] Defendant Kindred Hospital was subsequently dismissed with prejudice from this action on May 9, 2022 due to Plaintiff’s failure to amend the complaint following the Court’s sustaining a demurrer.

Department 58