Superior Court of California

County of Los Angeles

North Central District

Department B

lorenzo espinosa,

Plaintiff,

jay schermer and leslie druss as individuals and as trustees of the shermer trust dated march 7, 1984, et al.,

Defendants.

Case No.: 22BBCV00171

Hearing Date: January 12, 2024

[TENTATIVE] order RE:

motion to dismiss for failure to prosecute pursuant to ccp § 583.410(a)

BACKGROUND

A. Allegations

Plaintiff Lorenzo Espinosa (“Plaintiff” or “Espinosa”) alleges that he entered into a Residential Income Property Purchase Agreement and Joint Escrow Instructions (“Agreement”) with Defendant Jay Schermer and Leslie Druss as individuals and as trustees of the Schermer Trust dated March 7, 1984 (“Schermer Trust”) on January 11, 2022 involving the real property located at 6833-6835 Simpson Ave., North Hollywood, CA 91604. Plaintiff alleges that escrow was opened on January 11, 2022 with Time Escrow, Inc., but alleges that the listing broker failed to disclose a conflict of interest between Time Escrow Inc. and Defendant Razmik (Ray) Mirzakhanian (broker of the transaction and owner of Time Escrow Inc.). Plaintiff also alleges that Schermer Trust had refused to make all of the seller’s disclosures under the Agreement and refused to allow access to Plaintiff for inspection of the property. Plaintiff believes that a second sale has been orchestrated with a different buyer.

The complaint, filed March 17, 2022, alleges causes of action for: (1) breach of contract; (2) specific performance; and (3) intentional interference with contractual relations.

On May 2, 2022, Defendant/Cross-Complainant Jay Schermer and Leslie Druss as individuals and as trustees of the Shermer Trust dated March 7, 1984, Raznik Mirzakhanian, Berkshire Hathaway Homeservices Crest, Poli Hernandez, and Julianne Whitaker filed a cross-complaint against Plaintiff/Cross-Defendant Espinosa for: (1) breach of contract; (2) fraud; (3) intentional interference with contractual relations; (4) declaratory relief; and (5) injunctive relief.

B. Relevant Background

On November 4, 2022, the Court granted Defendant’s motion to compel arbitration.

On January 30, 2023, the Court denied Plaintiff’s motion for reconsideration on the motion to compel arbitration.

On March 17, 2023, the Court heard Defendant’s motion to compel an arbitration date and to select an arbitrator. The Court set a schedule for the parties to agree upon an arbitrator.

C. Motion on Calendar

On November 14, 2023, Defendants/Cross-Complainants filed a motion to dismiss for lack of prosecution pursuant to CCP § 583.410(a).

The Court is not in receipt of an opposition brief.

LEGAL STANDARD

CCP § 583.410 states in relevant part:

(a) 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.

(CCP § 583.410(a).)

CCP §583.130 states:

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.

(CCP § 583.130.)

DISCUSSION

Defendants and Cross-Complainants move for an order dismissing Plaintiff’s action for lack of prosecution.

They state that this action was ordered to arbitration on March 17, 2023 and that the Court set a post-status arbitration conference for November 20, 2023. They state that since an arbitrator was appointed by the Court, Plaintiff has essentially disappeared such that attempts to set an arbitration date by defense counsel and the arbitrator’s secretary have been without success. Defendants and Cross-Complainants argue that the action should be dismissed since Plaintiff has not done the minimum to complete arbitration.

Defense counsel, Marvin L. Benson, states that he made efforts to contact Plaintiff via phone, email, and mail. (Benson Decl., ¶¶4-6.) He states that his clients are still interested in selling the home or refinancing the property. (Id., ¶7.)

Plaintiff commenced this action (as a self-represented litigant) on March 17, 2022. The action was compelled to arbitration on November 4, 2022 and the Court thereafter aided the parties in choosing an arbitrator and setting an arbitration start date. There has been no progress or update by Plaintiff regarding the arbitration and whether he intends to go forward with his action. Plaintiff did not attend the April 11, 2023, May 9, 2023, May 24, 2023, and June 1, 2023 hearings regarding the selection of an arbitrator. (On June 1, 2023, the Court appointed Frederic W. Trester as arbitrator of the case.) Plaintiff also failed to attend the November 20, 2023 post-arbitration status conference.

Based on Plaintiff’s conduct, it appears that he has abandoned his case. While there is a policy in favor of prosecuting actions on their merits, Plaintiff has failed to submit his claims to arbitration as ordered by the Court, he has failed to attend numerous hearings, defense counsel has been unable to contact him for months, and Plaintiff has not opposed this motion. As such, the Court grants the motion to dismiss.

CONCLUSION AND ORDER

Defendants and Cross-Complainants’ motion to dismiss the action is granted. Plaintiff’s action shall hereby be dismissed with prejudice. Defendants shall provide notice of this order.

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DATED: January 12, 2024 ___________________________

John Kralik

Judge of the Superior Court