Judge: Jill Feeney, Case: 21STCV09587, Date: 2022-10-19 Tentative Ruling
Case Number: 21STCV09587 Hearing Date: October 19, 2022 Dept: 30
Department 30, Spring Street Courthouse
October 19, 2022
21STCV09587
Motion to Dismiss filed by Defendant Otto Mihai Tanacs
DECISION
The motion is denied.
Moving party to provide notice.
Background
This is an action for negligence arising from a vehicle collision which took place in August 2020.Plaintif Selena McCartney filed her Complaint against Defendants Otto Mihai Tanacs (erroneously sued as Otto Mihai Tanaes), Uber Technologies, Raiser LLC, and Raiser-CA, LLC on March 11, 2021.
Defendant Tanacs filed the instant motion to dismiss for delay in prosecution pursuant to Code Civ. Pro. section 583.410, subd. (a) on August 17, 2022.
Summary
Moving Arguments
Tanacs argues dismissal is appropriate because the date of the incident at issue took place more than two years ago. Tanacs has not been served with the lawsuit. Tanacs also argues Plaintiff has not communicated with his counsel, refused to provide records to allow him to investigate the matter, and has not made an effort to pursue discovery.
Opposing Arguments
None.
Legal Standard
“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;
(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.”
California Rules of Court, rule 2.30, subdivision (b) states “[i]n addition to any other sanctions permitted by law, the court may order a person, after written notice and an opportunity to be heard, to pay reasonable monetary sanctions to the court or an aggrieved person, or both, for failure without good cause to comply with the applicable rules.”
Discussion
Defendant Tanacs seeks orders dismissing this action against him on the grounds that Plaintiff failed to serve him with the lawsuit. The Court notes Plaintiff did not file proof of service.
As a threshold matter, the Court has discretion to dismiss an action under Code Civ. Proc. section 583.410, subd. (a)(1) if service has not been made within two years after the action is commenced against the defendant. The relevant consideration is not when the incident at issue occurred, but when the complaint was filed.
Here, Plaintiff filed her complaint on March 11, 2021. Two years have not passed since this action was commenced. Thus, the Court does not have the discretion to dismiss the action against Tanacs at this time.
