Judge: Lee S. Arian, Case: 20STCV46278, Date: 2023-11-13 Tentative Ruling

Case Number: 20STCV46278    Hearing Date: November 13, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.                   INTRODUCTION

On December 3, 2020, Plaintiff Abraham Macias (“Plaintiff”) filed a Complaint against Antonino Silva (erroneously sued as “Antonio Silva”) and Does 1 to 10 alleging (1) Assault and Battery; (2) Intentional Infliction of Emotional Distress; (3) Negligence; and (4) Violation of the Bane Civil Rights Act.

On August 19, 2022, the Court granted Plaintiff’s counsel’s motion to be relieved as counsel.

On March 9, 2023, Defendant Antonino Silva (“Defendant”) filed his answer to the Complaint.

Defendant now seeks a dismissal of this action based on Plaintiff’s failure to bring this action to trial within two years after this action was commenced.

II.                LEGAL STANDARD

The court may, in its discretion, dismiss an action for delay in prosecution where service is not made within two years after the action is commenced against the defendant (Code Civ. Proc., § 583.420, subd. (a)(1)), or where the action is not brought to trial within two years after the action is commenced against the defendant.  (Code Civ. Proc., § 583.420, subd. (a)(2)(B).)  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(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(e).)

III.             DISCUSSION

Because this action has not been set for trial within two years from when the Complaint was filed, Defendant argues that dismissal is warranted pursuant to Code of Civil Procedure § 583.420. (Motion at pg. 5.) Defendant further argues that Plaintiff has caused unreasonable delay in prosecuting this action and has not been diligent in appearing in this action since May 26, 2023.  (Ibid.; Pollock Decl. ¶¶ 7-8.)

“The penalty of dismissal against a dilatory plaintiff should be exercised with the utmost care; and where it appears that the plaintiff has a good cause of action, that plaintiff has made some showing of excuse for delay; and where defendant does not claim actual prejudice and has waited until the last possible moment to file a motion to dismiss, the ends of substantial justice are best met by a preference for the policy of favoring trials on the merits as contrasted with that policy which favors presumptions of prejudice.  The reason is that, in the absence of prejudice to defendants, attributable to unreasonable delays by plaintiff, the probability of a miscarriage of justice is greater when a trial on the merits is denied than it is where plaintiff is permitted to proceed.”  (City of Los Angeles v. Gleneagle Dev. Co. (1976) 62 Cal.App.3d 543, 563.)

The Court finds the delay in prosecuting this action and failure to appear in this action was due to Plaintiff’s death.  In the Declaration submitted in support of Defendant’s Motion, Plaintiff’s counsel indicates that Plaintiff’s son contacted him on October 2, 2023, and indicated that Plaintiff had passed away “a few months ago.” (Yang Decl. ¶ 3.) It is conceivable that Plaintiff’s personal representative or successor-in-interest may seek to continue with this action pursuant to Code of Civil Procedure § 377.31.  Combined with the disfavor of dismissal based on delay in prosecution, the Court finds that dismissal pursuant to Code of Civil Procedure § 583.420 is premature.

Accordingly, because the interest of justice would not be served by dismissal at this time, the motion is denied.

IV.             CONCLUSION

Based on the foregoing, Defendant’s motion to dismiss for failure to prosecute is DENIED.

Moving party to give notice.

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. 

         Dated this 13th day of November 2023