Judge: Kevin A. Enright, Case: 37-2019-00005790-CU-PL-CTL, Date: 2024-05-17 Tentative Ruling
SUPERIOR COURT OF CALIFORNIA,
DEPT.:
EVENT DATE:
EVENT TIME:
CENTRAL COURTHOUSE TENTATIVE RULINGS - May 16, 2024
05/17/2024 10:30:00 AM 2103 COUNTY OF SAN DIEGO
JUDICIAL OFFICER:Kevin A. Enright
CASE NO.:
CASE CATEGORY:
EVENT TYPE:
CASE TITLE: CASE TYPE:
Civil - Unlimited Product Liability Motion Hearing (Civil) 37-2019-00005790-CU-PL-CTL THARP VS BAYER CHEMICALS CORPORATION [IMAGED] CAUSAL DOCUMENT/DATE FILED:
The Court rules on defendants Monsanto Co., Wilbur-Ellis Co., LLC and Wilber-Ellis Nutrition, LLC's (collectively Defendants) motion to dismiss for delay in prosecution as follows: As a preliminary matter, Defendants' request for judicial notice is granted.
Defendants bring this motion pursuant to Code of Civil Procedure section 583.410-583.430 and California Rule of Court, rule 3.1342.
Defendants argue that this action is subject to both mandatory and discretionary dismissal. The Court agrees.
In Oskooi v. Fountain Valley Regional Hospital (1996) 42 Cal.App.4th 233, 240 (hereafter Oskooi), the court cited Denham v. Super. Ct. (1970) 2 Cal.3d 557, 563 (hereafter Denham), which concluded that '[i]t is only when there is an entire absence of any showing constituting good cause presented in the Superior Court upon the hearing of the motion to dismiss that a writ of mandate to compel the dismissal of the action may properly issue.' (Emphasis in original.) It further stated that '[p]rior to Denham, a motion to dismiss was mandated when a party failed to make an adequate showing of diligence or excuse. Denham changed the standard permitting trial court discretion unless there is an absence of any showing constituting good cause.' (Emphasis in original.) (Id. at p. 241.) Here, Plaintiffs argue that good cause exists since this action is part of a coordinated proceeding, that Defendants argued for a delayed trial for all the cases, and that Plaintiffs engaged in extensive settlement discussions.
As to the coordinated proceeding argument, Defendants correctly note that there is no authority stating that this case is exempt from dismissal merely because it is part of a coordinated proceeding.
Furthermore, Plaintiffs' argument that their ability to pursue discovery and prepare for trial was hindered fails since the record shows that the Court issued orders directing Plaintiffs to complete fact discovery and to prepare for trial. Finally, there was nothing that prevented them from requesting an earlier trial date.
As to the estoppel argument, Defendants note that the Court did not, in fact, adopt Defendants' proposed case management schedule. (Defendants' Request for Judicial Notice, Exh. 1.) Notably, Defendants also pointed out that it had argued against this action being deemed related and coordinated to the other Roundup cases. (Rodriguez Dec., Exh. B.) Calendar No.: Event ID: TENTATIVE RULINGS
3119772 CASE NUMBER: CASE TITLE: THARP VS BAYER CHEMICALS CORPORATION [IMAGED] 37-2019-00005790-CU-PL-CTL As to the settlement negotiations argument, Defendants pointed out that Plaintiffs did not initiate settlement negotiations with respect to this case, as opposed to the other coordinated cases it was counsel for, until about March 18, 2024. (See Oppo., p. 5, l. 19.) Furthermore, the court in Lesko v. Superior Court (1982) 127 Cal.App.3d 476, 486, held that entering into settlement negotiations without more, does not excuse a plaintiff's lack of diligence.
Thus, since no good cause has been shown, this action is subject to mandatory dismissal.
Nevertheless, even assuming the Court did not make the above noted finding, it would conclude that this matter is subject to discretionary dismissal for the reasons stated below.
In exercising the Court's discretion, it must consider the following: (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.
As a preliminary matter, the Court notes that Plaintiffs did not address factors 2, 9, 10.
As to factors 1 and 4, it is undisputed that Plaintiffs failed to do the following: (1) propound any discovery in this action, (3) demand or exchange any expert witness information, or (3) file a motion.
As to factor 3, as noted above, Defendants merely participated in settlement negotiations but did not, in fact, agree to settle. This is insufficient pursuant to Lesko.
As to factors 5 and 6, Defendants note that none of the other coordinated cases are determinative because issues relating to Plaintiffs' specific diagnoses and exposures are specific to each case. (See Oskooi, supra, 42 Cal.App.4th at p. 242.) As to factor 7, as noted above, the Court did not actually adopt Defendants' proposed case management schedule.
As to factor 8, Plaintiffs expressly acknowledged that this action is not ready for trial.
Thus, the Court concludes that this action is subject to discretionary dismissal.
Finally, Plaintiffs argue that they are entitled to tolling pursuant to Code of Civil Procedure section 583.340 subd. (c) given the coordinated nature of the proceedings and the Court's assignment of this action to Group 3. However, in Gordon's Cabinet Shop v. State Comp. Ins. Fund (1999) 74 Cal.App.4th 33, 59, the court held that 'no tolling should be imputed to coordination proceedings unless a stay is granted.' Because there was no period during which a coordination petition was pending, Plaintiffs were not entitled to a stay or further tolling of their five-year deadline. In addition, Plaintiffs cannot show that they acted with reasonable diligence given the lack of prosecution of this case as noted above.
Furthermore, the parties to this action have not entered into any tolling agreements. Finally, this case is factually distinguishable from Chin v. Meier (1991) 235 Cal.App.3d 1473, 1478.) Based on the foregoing, the motion is granted.
Calendar No.: Event ID: TENTATIVE RULINGS
3119772 CASE NUMBER: CASE TITLE: THARP VS BAYER CHEMICALS CORPORATION [IMAGED] 37-2019-00005790-CU-PL-CTL IT IS SO ORDERED.
Calendar No.: Event ID: TENTATIVE RULINGS
3119772