Judge: Kerry Bensinger, Case: 21STCV03515, Date: 2023-05-08 Tentative Ruling

Case Number: 21STCV03515    Hearing Date: May 8, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     May 8, 2023                           TRIAL DATE:  May 25, 2023

CASE:                         Wendell Budrow v. Los Angeles County Fair Association

CASE NO.:                 21STCV03515

MOTION TO DISMISS FOR FAILURE TO PROSECUTE

MOVING PARTY:               Defendant Los Angeles County Fair Association

RESPONDING PARTY:     N/A

I.          BACKGROUND

            On January 28, 2021, Plaintiff Wendell Budrow filed this Complaint against Defendant Los Angeles County Fair Association (erroneously sued and served as “Fairplex RV Park”) for negligence and premises liability arising from a slip and fall.  

            On September 2, 2022, the Court granted Plaintiff’s counsel’s motion to be relieved.

On March 15, 2023, Defendant filed the instant motion to dismiss for Plaintiff’s failure to prosecute this action.  The motion is unopposed.

II.        LEGAL STANDARDS

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.  (Cal. Rules of Court, Rule 3.1340, subd. (a).) 

In ruling on a motion to dismiss, the court may consider the court file, diligence in seeking effective service of process, the extent to which parties engaged in any settlement negotiations, diligence in pursuing discovery, nature and complexity of the case, pendency of other litigation based on common facts, nature of any extensions of time or other delay, condition of the court’s calendar, whether the interests of justice are best served by dismissal, and any other facts or circumstances relevant to fair determination.  (Cal. Rules of Court, Rule 3.1342, subd. (e).) 

“In order to avoid a dismissal for delay in prosecution, the plaintiff must show a reasonable excuse for such delay; once that showing is made, the trial court must consider all pertinent factors including those under rule [3.1432] and any prejudice to the defendant from the delay, before deciding whether to dismiss.  [Citations.]  However, where there has been a protracted and unexplained delay in prosecution, the defendant need not make an affirmative showing of prejudice.  Prejudice is inferred from the delay itself.  [Citation.]”  (Wagner v. Rios (1992) 4 Cal.App.4th 608, 611-12.)

III.      DISCUSSION

Defendant argues that Plaintiff has failed to prosecute this case and has abandoned his claim.  In support, Defendant points to the following circumstances: (1) no settlement negotiations have been held since before the filing of this lawsuit; (2) Plaintiff has not pursued any discovery; (3) there has been no substantive activity in this case since February 25, 2022 when Plaintiff served unverified discovery responses; and (4) this arises out of a trip and fall and is therefore not complex.  (Diehl Decl., ¶ 14.)  Based on the foregoing, Defendant argues that dismissal is warranted.

The Court agrees.  Defendant demonstrates that Plaintiff has not diligently prosecuted this action.  Further, the Court infers prejudice to Defendant from Plaintiff’s inactivity in this action which, at the time of this hearing, surpasses fourteen months.  (Wagner, supra, 4 Cal.App.4th at pp. 611-12 (“Prejudice is inferred from the delay itself.”).)  The case is more than two years old.  Plaintiff has not taken any steps to prosecute the case.  Indeed, Plaintiff fails to oppose this motion.   And the trial date is less than three weeks away.    

IV.       CONCLUSION

            Accordingly, the motion to dismiss for lack of prosecution is GRANTED. The case is dismissed pursuant to Code of Civil Procedure sections 583.410-583.430.  

Moving party to give notice. 

Dated:   May 8, 2023                                   ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  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.