Judge Holly J. Fujie, Case 20STCV34289 2023-01-05 Tentative Ruling

The Court has considered the moving papers. No opposition papers were filed. Any opposition papers were required to have been filed and served at least nine court days before the hearing under California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).

On September 9, 2020, Plaintiffs filed a complaint (the “Complaint”) alleging: (1) intentional fraudulent transfer; (2) fraudulent transfer; (3) transfer resulting in debtor’s insolvency; (4) common law fraudulent transfer; (5) aiding and abetting fraudulent transfer; (6) declaratory relief; and (7) unjust enrichment.

On November 21, 2022, Moving Defendant filed a motion to dismiss (the “Motion”) requesting that the Court dismiss the Complaint as to all named Defendants for failure to prosecute the action on the grounds that service was not effectuated on them within two years of the Complaint being filed. The Motion alternatively requests that the Court quash service of summons.

Under CCP section 583.410, the court has discretion to dismiss an action for delay in prosecution if doing so appears appropriate under the circumstances of the case. (CCP § 583.410, subd. (a).) The court may not exercise its discretionary power to dismiss an action for delay in prosecution unless one or more enumerated conditions have occurred, including: (1) service has not been made within two years after the action was commenced against the defendant; or (2) the action has not been brought to trial within three years after the action is commenced against the defendant or two years after the action is commenced against the defendant if the Judicial Council by rule adopted pursuant to CCP 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. (CCP § 583.420, subds. (a)(1)-(a)(2).)

California Rules of Court (“CRC”), rule 3.1342(e) provides that in determining whether the court should exercise its discretion in dismissing an action, the court must consider all relevant matters, including:

(1) The court’s file in the case and the declarations and supporting date submitted by the parties and, where applicable, the availability of the moving party and other essential parties for 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;

(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.

CRC, rule 3.1342(a) provides that a party seeking dismissal of a case under CCP 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. (CRC, r. 3.1342(a).) Under CRC, rule 3.1342(b), within 15 days after service of the notice of motion, the opposing party may serve and file a written opposition. (CRC, r. 3.1342(b). 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. (Id.)

The Motion was filed 45 days before the hearing. No opposition papers have been filed. Under CRC, rule 3.1342(b), the Court construes the lack of opposition as concession to the Motion’s merits.[1] The Court therefore GRANTS the Motion. (See also Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

[1] The Court additionally observes that no proofs of service were filed by Plaintiffs. The Motion indicates that Nazemi was served on September 28, 2022 and disputes the propriety of the service as to the entity Defendants.