Judge: Christopher K. Lui, Case: 22STCV32874, Date: 2025-01-29 Tentative Ruling

Case Number: 22STCV32874    Hearing Date: January 29, 2025    Dept: 76

            Defendants Home Preservation and Prevention, Inc. move to dismiss this action for delay of prosecution and requests attorneys fees.

TENTATIVE RULING

            Defendants Home Preservation and Prevention, Inc.’s  motion to dismiss is GRANTED. The case is ordered dismissed with prejudice.

            Defendants’ request for attorney’s fees is GRANTED in the reduced amount of  $45,095 in total fees and costs.

ANALYSIS

Motion To Dismiss

Request For Judicial Notice

            Defendants’ request that the Court take judicial notice of court records pertaining to this case is GRANTED per Evid. Code, § 452(d). Defendants ‘request that the Court take judicial notice of the Bilateral Support Agreement and Bilateral Referral Agreement is DENIED. These are not matters of which the Court may take judicial notice pursuant to Evid. Code § 452.

            However, the Court will consider these contracts as evidence.

Discussion

            Pursuant to Civ. Proc. Code, § 583.410, Defendants Home Preservation and Prevention, Inc. move to dismiss this action for delay of prosecution and requests attorneys fees.

(a) 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.

(b) Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.

     (Code Civ. Proc. § 583.410.)

(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:

(1) Service is not made within two years after the action is commenced against the defendant.

(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).

     (Code Civ. Proc. § 583.420 [bold emphasis added].)

`           In this regard, Civ. Proc. Code § 583.210 provides: “For the purpose of this subdivision, an action is commenced at the time the complaint is filed.”

Cal. Rules of Court. 3.1342 provides:

(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.

     (Cal. Rules of Court, Rule 3.1342(a) & (b)[bold emphasis added].)

            Plaintiff has not filed any opposition. Pursuant to Cal. Rules of Court, Rule 3.1342(b), the Court construes this as an admission that the motion to dismiss for failure to bring the case to trial within two years of commencing this action against Defendant is meritorious. As such, the Court will grant the motion without a hearing on the merits, as permitted by Rule 3.1342(b).

            The motion to dismiss is GRANTED. The case is ordered dismissed with prejudice.

            Defendants’ request for attorney’s fees pursuant to Section 8(j) of the Bilateral Support Agreement with HPP and Section 9(j) of the Bilateral Referral Agreement with UNIFI (Terghevondian Decl., Exhs. E1 and E2) as the prevailing party is GRANTED in the reduced amount of  $45,095 in total fees and costs. (Terghevondian Decl., ¶ 19; Luna Decl., ¶ 7.)