Judge: Cherol J. Nellon, Case: 22STCV30035, Date: 2023-10-05 Tentative Ruling

Case Number: 22STCV30035    Hearing Date: December 13, 2023    Dept: 14

(1)       OSC re: Sanctions

            The first hearing in this case was the case management conference, held on May 2, 2023. Defendants Fede and Figueroa appeared. Plaintiff did not. This court continued the case management conference and set an OSC re: dismissal for July 25, 2023.

            On July 24, 2023, Plaintiff’s counsel filed a declaration explaining his absence from the prior hearing as a simple calendaring error of the kind that occur all the time in litigation.

            On July 25, 2023, this court called the case management conference and the OSC re: dismissal. Defendants Fede and Figueroa appeared in person, as it was their understanding that physical appearances had been ordered by the court. Plaintiff’s counsel appeared telephonically.

            At the hearing, Plaintiff’s counsel represented that Defendant Vogel now lives abroad, in Germany. Plaintiff’s counsel observed that, due to the cumbersome procedures associated with international service, Plaintiff would probably be unable to serve Defendant Vogel in advance of the statutory time limit. He indicated an intent to proceed against Defendants Fede and Figueroa alone.

            The court set trial dates at the July 25 hearing. It also continued the OSC re: Dismissal to September 1, 2023, and ordered all counsel and unrepresented parties to appear in person on that date. Subsequently, the court continued the hearing to October 5, 2023.

Plaintiff’s counsel filed no subsequent, further declaration in response to the OSC. Instead, they moved to be relieved, a motion which was granted on October 5, 2023, effective on filing a proof that the order granting relief had been served upon the client. Proof of service of the order was filed on October 26, 2023.

On October 5, 2023, this court issued an OSC re: Sanctions, directing Plaintiff to explain both the legal theory and evidentiary support for asserting the first, second, third, fourth, fifth, sixth, seventh, and tenth causes of action against Defendants Michael Fede and Casandra Figueroa. Plaintiff has filed no response to the OSC, nor has he taken any other action.

            The court has reviewed Plaintiff’s complaint. Nothing is alleged there which would support the direct assertion of the first, second, third, fourth, fifth, sixth, seventh, and tenth causes of action against Defendants Fede and Figueroa. The only connection which appears between Plaintiff and Defendants Fede and Figueroa is the sub-landlord/sub-tenant relationship.

Nor does there appear to be any real prospect of asserting those claims against them based on the vicarious theory of conspiracy. The only connection which appears between Defendant Mona Vogel and the other defendants is a personal acquaintance and the sub-landlord/sub-tenant relationship. This is especially true in light of the fact that Plaintiff has shown no indication that he will ever proceed against Defendant Mona Vogel.

Therefore, pursuant to Code of Civil Procedure section 128.7(c) & (d), the court orders that the first, second, third, fourth, fifth, sixth, seventh, and tenth causes of action against Defendants Fede and Figueroa are DISMISSED. Plaintiff is ORDERED to file a First Amended Complaint, within 30 days, which does not include these causes of action. Plaintiff is further ORDERED to pay $500 to Defendant Fede and $500 to Defendant Figueroa within 30 days. The monetary sanctions will compensate Defendants for their expenses in responding to the dismissed claims.

(2)       OSC re: Dismissal

            This court set an OSC re: Dismissal due to Plaintiff’s failure to appear on May 2, 2023. It has remained on calendar with respect to Defendant Vogel only pursuant to the court’s orders of July 25, 2023, and October 5, 2023. At the last hearing, Plaintiff was ordered to either produce a plan to serve Defendant Vogel, or else to dismiss her.

            Plaintiff has not submitted any response to this OSC. It does not appear that there is any viable plan to prosecute this case against Defendant Vogel. Therefore, the case against Defendant Vogel is DISMISSED, for lack of prosecution.

            The court sets an OSC re: Dismissal of Entire Case for Lack of Prosecution for January 24, 2023, at 8:30 am.