Judge: Kerry Bensinger, Case: 20STCV17540, Date: 2025-03-14 Tentative Ruling

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 20STCV17540    Hearing Date: March 14, 2025    Dept: 31

Tentative Ruling

Judge Kerry Bensinger, Department 31

HEARING DATE:     March 14, 2025                                  TRIAL DATE:  Not set

CASE:                                Irma Gonzalez v. Martini Associates Development, LLC

CASE NO.:                 20STCV17540

MOTION TO DISMISS FOR FAILURE TO PROSECUTE UNDER CALIFORNIA CODE OF CIVIL PROCEDURE §§ 583.310, 583.360, AND 410.30

MOVING PARTY:               Defendant Frank Martini

RESPONDING PARTY:     Plaintiff Irma Gonzalez

I.          BACKGROUND

            On May 8, 2020, Plaintiff, Irma Gonzalez commenced this wage and hour suit against her employer, Defendant Martini Associates Development LLC d/b/a Los Angeles Adventurer All-Suite Hotel (“Martini Associates”), alleging various Labor Code violations, and, in relevant part, Private Attorney General Act (PAGA) claims.  The operative pleading is the First Amended Complaint (FAC).

            On January 21, 2021, Plaintiff added Frank Martini (“Martini”) as a defendant in this action by way of doe amendment.  

            On October 7, 2022, the court granted defense counsel’s motion to be relieved as counsel.  

            On July 5, 2023, default was entered against Martini Associates. 

On December 20, 2024, default was entered against Martini.  However, pursuant to oral stipulation, the default entered against Martini was set aside on February 14, 2025.  Accordingly, Martini is the only remaining defendant in this action.  Martini is self-represented. 

            On February 19, 2025, Martini filed this Motion to Dismiss for Failure to Prosecute Under California Code of Civil Procedure §§ 583.310, 583.360, and 410.30.

            On February 28, 2025, Plaintiff filed an opposition.

            No reply had been filed at the time of the hearing.

II.           DISCUSSION

            Martini moves the court for an order dismissing for failure to bring this action to trial within five years of filing the complaint pursuant to Code of Civil Procedure (CCP) sections 583.310 and 583.360.  Alternatively, Martini argues the case should be dismissed pursuant to CCP section 410.30 for failure to prosecute because Plaintiff has not set the case for trial. 

The arguments are meritless.  First, this case was filed on May 8, 2020.  Five years has not run.  (See CCP §§ 583.310 and 583.360.)  Second, CCP section 410.30 applies to motions for dismissal based on forum non conveniens.  On its face, Section 410.30 does not apply. 

III.       CONCLUSION 

Based on the foregoing, the motion to dismiss is DENIED. 

Plaintiff to give notice.

Dated:   March 14, 2025