Judge: Cherol J. Nellon, Case: 21STCV02844, Date: 2023-10-17 Tentative Ruling

Case Number: 21STCV02844    Hearing Date: October 17, 2023    Dept: 14

(1)        OSC re:
Default

            The OSC re:
Default is TAKEN OFF-CALENDAR. Plaintiff has displayed no inclination to seek default
against the Defendants and the court will not maintain items on its calendar if
they result in no action.

            Plaintiff
first informed the court that it would seek default on July 21, 2022. (See
Minute Order of July 21, 2022). Plaintiff’s first and only attempt to enter
default occurred two months later, when it submitted a single form seeking the
default of four out of the six remaining defendants. (Request for Entry of
Default filed September 22, 2022). That request was rejected by the clerk’s
office. (Notice of Rejection issued September 26, 2022).

            In the
intervening time, there have been three hearings on this OSC re: Default. At
the first two, Plaintiff was ordered to submit his paperwork by certain dates:
first November 4, 2022, then May 16, 2023. (Minute Orders of September 26, 2022
and February 23, 2023). Nothing was done. At the third hearing, the court continued
the OSC to the present date and issued the OSC re: Dismissal discussed below.
Still nothing has been done. Default has not been entered as to any Defendant.

(2)        OSC re:
Dismissal

            The complaint
against Defendant Commercial Grow Supply, Inc., is DISMISSED, without prejudice.

            The OSC re:
Dismissal is CONTINUED to January 29, 2024, at 8:30 am. If the default of the
remaining Defendants has not been entered and there is no prove-up package
filed by that date, the case will be dismissed for lack of prosecution pursuant
to Code of Civil Procedure § 583.420(a)(2)(A).

            This case
was filed on January 25, 2021. No one attended the initial case management
conference held on May 17, 2021. Plaintiff’s counsel appeared at the next
hearing, on July 8, 2021, and represented that he was attempting to settle with
some or all of the Defendants. At the next hearing, on November 16, 2021,
Plaintiff’s counsel reported that the settlement had fallen through.

            No Defendant
was served in this case until March 22, 2022. No proof of that service was
filed until September 21, 2022. As noted above, Plaintiff’s counsel had
indicated an intent to pursue default two months prior to that filing. And as
also noted above, only one attempt was ever made to obtain their default.
Instead, a year has gone by with no action at all, despite three hearings and
two direct court orders.

            Code of
Civil Procedure §§ 583.410(a) and 583.420(a)(1) vest this court with the
authority to dismiss a party who has not been served within 2 years of the
commencement of the case. Defendant Commercial Grow Supply, LLC was an original
named Defendant in this case. Nearly three years have gone by in which they
have not been served and no action whatever has been taken against them. It is
now appropriate that they be dismissed.

            Code of
Civil Procedure §§ 583.410(a) and 583.420(a)(2) and California Rules of
Court Rule 3.1340 vest this court with discretion to dismiss a case for lack of
prosecution if it has not been brought to trial within either two (Section 583.420(a)(2)(B)
and Rule 3.1340) or three (Section 583.420(a)(2)(A) years.

            The other Defendants
were at least served, and there was at least one effort to enter their default.
For that reason alone, it is not appropriate to dismiss the case under the
two-year statutory provisions. However, this case will be three years old on
January 25, 2024. It cannot continue to linger. For that reason, the court will
continue this OSC to a date after the three-year anniversary. If progress is
not made, the remainder of the case will be dismissed under the three-year
statutory provision.