Judge Jill Feeney, Case 20STCV37651 2023-01-23 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

The Court does not expect to see any late filings by Plaintiff in the future. It is not acceptable. It is also particularly egregious because Plaintiff does not even acknowledge that the filing is late.

This is an action for negligence and motor vehicle negligence arising from a car accident which took place in November 2019. Plaintiff Devon Bush filed his Complaint against Defendants Gardena Police Department, the City of Gardena, and the County of Los Angeles on October 1, 2020.

On April 1, 2022, the Court dismissed the case without prejudice pursuant to CCP 581(b)(3) for failure to appear for trial.

On October 28, 2022, Plaintiff filed a proof of service indicating that the moving Defendant City of Gardena (“City”) was served on October 4, 2022, three days after the two year anniversary of the filing of the complaint on October 1, 2020.

City argues that the Court should exercise its discretion to dismiss this matter because Plaintiff failed to serve the Complaint on City for over two years after filing the Complaint. City contends that Plaintiff failed to exercise reasonable diligence in the prosecution of the action. City states that it is prejudiced in defending this case as a result of the delay.

Plaintiff contends that Plaintiff did not actually wait two years to serve the case as the case was dismissed for a period of time and during that time service could not be effectuated. Plaintiff further argues that Plaintiff promptly served City on the same day that Plaintiff’s motion to set aside dismissal was granted. Finally, Plaintiff states that there is no prejudice here as Defendant was aware of the incident via the government claim that was filed and because although Officer Kim no longer works for the City’s police force, he is still available to provide testimony in the matter.

On reply, Defendant argues that Plaintiff’s opposition should be disregarded as it was not timely filed. Defendant reiterates that Plaintiff has not acted with due diligence and that Defendant has been prejudiced by the delay. Defendant further states that proof of prejudice is not necessary and that it is Plaintiff’s burden to demonstrate reasonable diligence.

“The court may in its discretion dismiss an action for delay in prosecution. . ..” (Code Civ. Proc. section 583.410.) However, a court must first find either: (1) service has not been effectuated within two years since commencement of the action, (2) an action is not brought to trial within three years after it is commenced against a defendant, or (3) a new trial is granted and the action is not brought to trial within a certain time. (Code Civ. Proc. section 583.420, subd. (a).)

After California Code of Civil Procedure section 583.420, subdivision (a) is satisfied, the Court analyzes a variety of relevant factors, including those prescribed in California Rules of Court, rule 3.1342, subdivision (e). Those factors include:

(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;

(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;

(8) The condition of the court’s calendar and the availability of an earlier trial date if the matter was ready for trial;

The Court has discretion to dismiss an action if service has not been made within two years after the action is commenced. Here, the City was, according to the proof of service, served three days beyond that date.

Given that service occurred after two years, the Court then turns to the factors in California Rules of Court, rule 3.1342, subdivision (e). The Court finds that the factors here do not weigh in favor of dismissal.

Here, Plaintiff’s counsel has testified that as a result of an inadvertent notation in the firm’s case management system, the case was believed to be settled and that is the reason that counsel did not appear for the final status conference and the trial. (Youabian Declaration, Paragraph 6.). As a result of this error, the case was dismissed for a time and Plaintiff had to move to set aside the dismissal.

Plaintiff served Defendant on the same date as the dismissal was set aside. Under these circumstances, the Court finds that Plaintiff has met Plaintiff’s burden.

With respect to the issue of prejudice, City has not demonstrated the existence of prejudice here. City was on notice of the facts giving rise to the action several years earlier as a result of the claim that was filed. Moreover, the officer involved in the accident is still available to provide evidence in the case even though he no longer works for City’s police department.