Judge: Gregory Keosian, Case: 18STLC06593, Date: 2023-08-21 Tentative Ruling
Case Number: 18STLC06593 Hearing Date: August 21, 2023 Dept: 61
Defendant
Erika Echeagaray and Adolfo Echeagaray’s Motion to Dismiss is DENIED.
I.
MOTION TO
DISMISS
“An action shall be
brought to trial within five years after the action is commenced against the
defendant.” (Code Civ. Proc. § 583.310.) This computation of time excludes all
time during which “[p]rosecution or trial of the action was stayed or
enjoined.” (Code Civ. Proc. § 583.340, subd. (b).) If trial is not held within
the time allowed, an action may be dismissed by the court on its own motion or
on motion of the defendant. (Code Civ. Proc. § 583.360, subd. (a).)
Defendants Erika Echeagaray and Adolfo Echeagaray (Defendants) move to
dismiss this action for violating the five-year deadline set out in the above
statutes. Defendants reason that this matter was filed on May 1, 2018, meaning
that trial in this matter ought to have been brought by May 1, 2023. While
acknowledging that this court previously denied an oral motion to dismiss made
upon the same grounds, which was based on the six-month extension of time
provided for in Emergency Rule 10, Defendants in the present motion argue that
Emergency Rule 10 is invalid, because it is not a statute permitting the
extension of time under Code of Civil Procedure § 583.360, as held in the case Ables v. A. Ghazale Brothers, Inc. (2022) 74 Cal.App.5th 823.
(Motion at pp. 7–8.) Defendants argue that this is not a motion for
reconsideration, because the prior motion was brought by Defendants’ present
counsel prior to their formal substituting into this case. (Motion at pp. 8–9.)
This is
a motion for reconsideration of this court’s prior order of June 9, 2023.
Defendants’ present counsel moved to dismiss this action in reliance on the Ables
case at the hearing of June 7, 2023, in which this court granted the motion of
Defendants’ prior counsel to be relieved. On June 9, 2023, this court rendered
its ruling, noting that Ables was distinguishable from the present case,
in that it involved a matter that was set for trial beyond the six-month
deadline set by the Emergency Rule, and was unlike the present case, in which
the full five-year-and-six-month deadline has not yet elapsed. (See 6/9/2023
Ruling.) Defendants do not bring the present motion on any “new or different
facts, circumstances, or law,” as is required for such a motion. The argument
that the prior motion was not in fact brought by Defendants because their
attorney had not yet substituted in is unpersuasive, as “the act of making a
court appearance on behalf of a party
creates a presumption that the attorney is authorized
to do so.” (Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441,
446.) The prior ruling stands.
The motion is therefore DENIED.