Judge: Gregory Keosian, Case: 18STUD11205, Date: 2023-08-25 Tentative Ruling

Case Number: 18STUD11205    Hearing Date: August 25, 2023    Dept: 61

Plaintiff FML Management Corp.’s Motion to Dismiss Cross-Complainant Adrian E. Paxtor’s Cross-Complaint is DENIED.

I.       MOTIONS TO DISMISS

Plaintiff and Cross-Defendant FML Management (Plaintiff) moves to dismiss the cross-complaint of Defendant and Cross-Complainant Adrian E. Paxtor for failure to prosecute under Code of Civil Procedure § 583.410. That statute states:

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.

(Code Civ. Proc. § 583.410, subd. (a).)

CRC Rule 3.1342 describes relevant considerations for such a motion:

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.

(CRC Rule 3.1342, subd. (e).) Code of Civil Procedure § 583.130 sets forth the policies regarding diligence in prosecution as follows:

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 Civ. Proc. § 583.130.)

Plaintiff here presents the following evidence in favor of dismissal of Paxtor’s claims. Cross-Complainants (including Paxtor) filed their initial cross-complaint on February 5, 2019, and have since filed two amended cross-complaints, with the last being filed on March 2, 2021. On June 26, 2023, Plaintiff noticed Paxtor’s deposition to take place on July 19, 2023. (Vandenburg Decl. ¶¶ 5–6.) But on the appointed day, Paxtor failed to appear, with no prior objections being served, and a certificate of non-appearance was taken. (Vandenburg Decl. ¶ 6.)

Shortly thereafter, on July 26, 2023, the parties’ respective witness lists, exhibit lists, jury instructions, and short statements of the case were due. Yet Paxtor failed to file any of the pre-trial materials. (Vandenburg Decl. ¶ 7.) Plaintiff contends that Paxtor failed to appear for trial on August 8, 2023 trial, but the minute order for that date does not reflect his absence, but rather shows the appearance of his counsel (See 8/8/2023 Minute Order.) Trial is now scheduled for August 25, 2023, and Paxtor has filed no opposition to the motion.

Plaintiff has not shown entitlement to dismissal upon the above facts. The motion is supported by two facts: that Paxtor did not appear for deposition and has not timely filed his pre-trial documents, all of which occurred in the space of a month. Dismissal is a drastic remedy, and Plaintiff has not shown a comprehensive failure to prosecute such that this remedy is appropriate.

The motion is DENIED.