Judge Joel L. Lofton, Case Number: 20BBCV00336, Date: 2023-10-19 Tentative Ruling

Judge: Joel L. Lofton, Case: 20BBCV00336, Date: 2023-10-19 Tentative Ruling

Case Number: 20BBCV00336 Hearing Date: October 19, 2023 Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE: October 19, 2023 TRIAL DATE: No date set.

CASE: IDAN ASAYAG, an individual; and ASAYAG BUILDER, INC. a California corporation, v. GOOGLE LLC, a Delaware limited liability company; and DOES 1 through DOE 10, INCLUSIVE.

CASE NO.: 20BBCV00336

MOTION TO DISMISS

MOVING PARTY: Defendant Google, LLC

RESPONDING PARTY: Idan Asayag and Asayag Builders, Inc.

SERVICE: Filed May 31, 2023

OPPOSITION: Filed October 6, 2023

REPLY: Filed October 13, 2023

RELIEF REQUESTED

Defendant moves to dismiss the present action for failure to prosecute.

BACKGROUND

This case arises out of Plaintiffs Idan Asayag and Asayag Builder, Inc.’s (“Plaintiffs”) claim that Defendant Google, LLC failed to refund a portion of Plaintiffs’ money. Plaintiffs filed their complaint on May 26, 2020.

TENTATIVE RULING

Defendant’s motion to dismiss is DENIED.

DISCUSSION

Defendant moves to dismiss the present action against it based on Plaintiffs’ failure to prosecute the action.

California Rules of Court, Rule 3.1340, subdivision (a), provides: “The court on its own motion or on motion of the defendant may dismiss an action under Code of Civil Procedure sections 583.410-583.430 for delay in prosecution if the action has not been brought to trial or conditionally settled within two years after the action was commenced against the defendant.”

               Code of Civil Procedure section 583.410, subdivision (a), provides: “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.”

California Rules of Court, Rule 3.1342 provides that considerations for granting a motion to dismiss 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.”

Defendant argues that Plaintiffs and their counsel have failed to prosecute this action since the onset of this case. The original complaint was filed on May 26, 2020. There were no appearances at the August 10, 2020, hearing on the order to show cause. Defendant was served on September 24, 2020. Defendant provides it informed Plaintiffs of its intent to move to compel arbitration but postponed doing so to allow Plaintiffs to file an amended complaint. (Gutkin Decl. ¶ 2.) Defendant provides it stipulated to allow Plaintiffs to file an amended complaint. However, Defendants provide that despite three separate stipulations to allow filing on January 14, 2021, November 5, 2021, and February 15, 2022, Plaintiffs failed to file an amended complaint. (Motion at p. 3:1-16.)

Defendant’s motion to compel arbitration was granted on June 10, 2022, with a status conference set for December 7, 2022. Defendant provides that Plaintiffs failed to file an arbitration demand and failed to appear for the 2022 status conference. Defendant provides that Plaintiffs have still failed to file an arbitration demand and failed to appear for the April 26, 2023, status conference. (Gutkin Decl. ¶¶ 4-6.)

In opposition, Plaintiffs’ counsel provides that any delay is his responsibility and that he will file a demand for arbitration before the hearing date on this motion. (Rudd. Decl. ¶¶ 4; 6-7.) “Trial courts must balance the ‘opposing responsibilities’ of ‘actively assum[ing] and maintain[ing] control over the pace of litigation’ and ‘abid[ing] by the guiding principle of deciding cases on their merits rather than on procedural deficiencies.’ ” (In re Harley C. (2019) 37 Cal.App.5th 494, 508.) The court recognizes the importance of allowing Plaintiffs claims to be decided on their merits. However, the court also recognizes that Plaintiffs have repeatedly failed to appear for status conferences and failed to act to move this case forward. Plaintiffs’ counsel representation that he will file a demand for arbitration rings hollow when similar representations have been made in the past that have gone unfulfilled.

It is also clear that, despite Plaintiffs’ counsel’s baseless assertion to the contrary, Defendant has been prejudiced by Plaintiffs’ repeated failure to engage in the civil litigation that they chose to bring in the form of delay and additional legal expenses. Nonetheless, the court finds that dismissing the present case at the current juncture is not appropriate under the circumstances. However, Plaintiffs are warned the failure to prosecute this action will provide basis for monetary sanctions and/or a future motion to dismiss.

CONCLUSION

Defendant’s motion to dismiss is DENIED.

Moving party to give notice.

Dated: October 19, 2023 ___________________________________

Joel L. Lofton

Judge of the Superior Court