Judge: Cherol J. Nellon, Case: 20STCV28702, Date: 2023-08-09 Tentative Ruling

Case Number: 20STCV28702    Hearing Date: October 4, 2023    Dept: 14

Case Background

Lemon law involving Plaintiffs’ 2014 Kia Soul.

On July 29, 2020, Plaintiffs filed their Complaint for (1) Violation of Song Beverly Consumer Warranty Act Section 1793.2(d); (2) Violation of Song Beverly Consumer Warranty Act Section 1793.2(b); (3) Violation of Song Beverly Consumer Warranty Act Section 1793.2(a)(3); (4) Breach of Express Written Warranty; (5) Breach of the Implied Warranty of Merchantability; and (6) Fraud by Omission against Defendants Kia Motors America, Inc. (hereinafter “Kia”) and DOES 1-10.

On October 29, 2020, this court sustained Defendant Kia’s demurrer to the fifth cause of action, without leave to amend.

On January 11, 2021, this court granted Defendant Kia’s motion to compel arbitration and ordered the case stayed pending arbitration.

No trial date is currently set.

            Defendant Kia now moves this court for an order dismissing this case for delay in prosecution.

Decision

            Plaintiff’s Request for Judicial Notice is DENIED. The existence of other cases or appellate proceedings in other cases is not relevant to this case. If a decision rendered by the appellate court is citable on the points of law at issue here, Plaintiffs should cite it in the ordinary course.

            The motion is GRANTED. This action is DISMISSED, without prejudice to the proceedings in arbitration.

Governing Rules

            California Rules of Court Rule 3.1342 provides as follows:

            “(a) Notice of motion

A party seeking dismissal of a case under Code of Civil Procedure sections 583.410-583.430 must serve and file a notice of motion at least 45 days before the date set for hearing of the motion. The party may, with the memorandum, serve and file a declaration stating facts in support of the motion. The filing of the notice of motion must not preclude the opposing party from further prosecution of the case to bring it to trial.

(b) Written opposition

Within 15 days after service of the notice of motion, the opposing party may serve and file a written opposition. 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.

(c) Response to opposition

Within 15 days after service of the written opposition, if any, the moving party may serve and file a response.

(d) Reply

Within five days after service of the response, if any, the opposing party may serve and file a reply.

(e) Relevant matters

In ruling on the motion, 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;

(2) The diligence in seeking to effect 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;

(5) The nature and complexity of the case;

(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.

(f) Court action

The court may grant or deny the motion or, where the facts warrant, the court may continue or defer its ruling on the matter pending performance by either party of any conditions relating to trial or dismissal of the case that may be required by the court to effectuate substantial justice.”

            Code of Civil Procedure § 583.130 provides:

“It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition. Except as otherwise provided by statute or by rule of court adopted pursuant to statute, the policy favoring the right of parties to make stipulations in their own interests and the policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter.”

            Code of Civil Procedure § 583.420 provides in relevant part:

“(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:

…
(2) The action is not brought to trial within the following times:

(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.

            …

(b) The times provided in subdivision (a) shall be computed in the manner provided for computation of the comparable times under Articles 2 (commencing with Section 583.210) and 3 (commencing with Section 583.310).”

California Rules of Court Rule 3.1340 authorizes this court to dismiss cases for lack of prosecution after two years, pursuant to Section 583.420(a)(2)(B).

Discussion

            A previous motion of this type came on for hearing on August 9, 2023. Plaintiffs objected that the motion was not timely filed, this court agreed, and the motion was taken off-calendar without a ruling. Defense then filed the instant motion the same day, reserving a hearing date of September 26, 2023. Per California Rules of Court Rule 3.1342(b), Plaintiffs’ opposition was due on August 24, 2023, and failure to comply with that rule may operate as a concession that the motion was meritorious.

Plaintiffs did not file an opposition until September 12, 2023, disrupting the briefing schedule in precisely the manner they complained of earlier. However, Defense has not objected to the late filing. Given the policies at play here, the court will consider the opposition.

The sequence of events is undisputed here. This case was filed on July 29, 2020. The court ordered it to arbitration on January 11, 2021. Then nothing happened. There was a post-arbitration status conference on July 28, 2021, attended only by Plaintiff, who indicated that no arbitrator had yet been selected.

There was another such conference on January 26, 2022, this time attended by both sides, bearing the same news. That same morning, though it is not clear whether it was before, after, or during their hearing, Plaintiffs’ counsel emailed Defense asking which of two major organizations they would like to use. Nothing came of this and there were no further communications on the subject until the next year.

On February 27, 2023, there was another post-arbitration status conference, at which Plaintiffs’ counsel indicated plans to file a motion to establish Defense’s waiver of arbitration. That motion never materialized. On June 6, 2023, a fourth post-arbitration status conference was held, and Plaintiffs’ counsel indicated their intent to file a motion for reconsideration of the January 11, 2021 decision to compel arbitration.

That motion for reconsideration was filed on June 12, 2023. Defense responded with their first motion to dismiss for lack of prosecution on July 18, 2023. Only with that motion pending, on July 27, 2023, did Plaintiffs make any further attempt to contact Defense about choosing an arbitrator. The parties’ discussions have been ongoing since that point, but they still have not selected an arbitrator.

Jurisdiction

            Plaintiffs argue that this court has no jurisdiction to hear this motion. This improperly conflates the court’s jurisdiction over its own case with the court’s jurisdiction over the arbitration.

Arbitration is a separate, private proceeding administered by the arbitrator. The court has no power to set hearings or impose deadlines in the arbitration, let alone to order the arbitration dismissed. As Plaintiffs point out, the proceeding in the public courts is abated while the arbitration proceeds. These are the propositions for which Plaintiffs’ cited authorities stand.

But none of those authorities hold that the court loses jurisdiction over its own proceedings. Abatement is not, and cannot be, forever. The cases cited by Plaintiffs tell the courts that an arbitrator is the person who should decide whether to dismiss a “pending arbitration” for lack of prosecution. See e.g. Byerly v. Sale (1988) 204 Cal.App.3d 1312, 1316. But here there is neither an arbitrator nor any pending arbitration.

One party cannot hold the other party in court, pinned and immobile, by failing to proceed into arbitration. This is especially true when arbitration was ordered by the court in the first place. If the court orders a party to arbitration, and that party refuses to either appeal or comply, the natural consequence is the loss of their position before the court. And the court cannot hold stale cases open forever, depriving other, active litigants of court time and space which could be used to resolve their matters.

A dismissal order may have few, if any, practical consequences for the parties. It is not, and cannot be, an order halting the arbitration process. See Byerly, supra, 204 Cal.App.3d at 1314-15. Plaintiffs retain the contractual right to select an arbitrator and proceed in arbitration. Id. Either side retains the statutory right to move for confirmation, correction, or vacation of any subsequent award. Id. It simply means that this court will not carry this case open on its books, using up valuable time and resources that more properly belong to other litigants.

Propriety of Dismissal

            This is a simple lemon law case. Once ordered to arbitration, it should have been a simple matter for Plaintiffs to select an arbitrator and proceed. Instead, they did nothing. For a year.

            Then, when called into a hearing, Plaintiff sent a single email to Defense asking about the selection of an arbitration organization. The email was almost simultaneous with the hearing and there was no other follow-up. Instead, Plaintiff again fell silent for another year and a half.

            It wasn’t until June of 2023, 2 ½ years after arbitration was ordered and almost 3 years after the case was filed, that Plaintiff took any significant action. 

            It is unclear how the policy favoring resolution on the merits should affect this case. While ordinarily the arbitrator would resolve the dispute, leaving nothing for the court to do, arbitrability was one of the matters referred to arbitration in the original order. Therefore, it is possible that the arbitrator could determine that the matter is not subject to arbitration and refer it back to the court.

            Plaintiffs contend that the arbitrator will do exactly that. But the court has no idea what the (as yet unselected) arbitrator will do. And this ambiguity is entirely the creation of the Plaintiffs’ delay. If Plaintiffs had wanted an answer to the arbitrability question, they could have had it long ago. They offer no explanation for their neglect.

            Furthermore, the Defense has been clearly prejudiced by this delay. The case has been stayed for years. There has been no arbitration proceeding in which discovery could be taken and facts developed. The vehicle at issue was already six years old when the case was filed. It is nine years old now, with ten years not far away. Meaningful inspection of the vehicle will be much more difficult. Witness memories will have faded. Any number of accidents may have befallen relevant records in that time.

Conclusion

          At the end of the day, the basic facts are these. The court ordered arbitration. Plaintiffs did virtually nothing to initiate arbitration or otherwise advance this case for 2 ½ years. Only when faced with a motion to dismiss did they put forth any meaningful effort. Plaintiffs do not even acknowledge the delay, much less attempt any kind of reasonable explanation. They simply assert that a single email, sent in the shadow of a court hearing, constitutes diligence. It does not.

            All the relevant factors weigh in favor of dismissal here. Therefore, the motion is GRANTED. This action is DISMISSED, without prejudice to the proceedings in arbitration.