Judge: Lee S. Arian, Case: 21STCV07597, Date: 2024-04-11 Tentative Ruling

Case Number: 21STCV07597    Hearing Date: April 11, 2024    Dept: 27

Hon. Lee S. Arian

Department 27

Tentative Ruling

Hearing Date:                4/11/2024 at 1:30 p.m.

Case No./Name.:         21STCV07597 DAWN MARIE FISHER vs ADAM F. GOLDBERG PRODUCTION

Motion Name:                MOTION TO DISMISS

Moving Party:                 Defendant Remote Broadcasting Inc.

Responding Party:      Plaintiff

Notice:                                Sufficient

Ruling:                               MOTION TO DISMISS IS GRANTED

Legal Standard

A court has discretion to dismiss an action for delay in prosecution. (See Code Civ. Proc., § 583.410(a).) The court may not dismiss an action for delay in prosecution unless service has not been made within two years after the action is commenced against the defendant. (See id., § 583.420(a)(1).) If service of the summons and complaint has not been served upon a defendant within the three-year statutory time period, the court shall dismiss the action. (See id., § 583.250.)

In determining whether the court should exercise its discretion in dismissing an action, the court must consider all relevant matters, including: 

“(1) The court’s file in the case and the declarations and supporting date 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.” 

(Cal. Rules of Court, rule 3.1342(e).)

The plaintiff has the burden of showing excusable delay once a complaint is not served within the two-year period. (Ladd v. Dart Equipment Corp. (1991) 230 Cal.App.3d 1088, 1099-110.) The court must consider all relevant matters, including the court’s file in the case and declarations and supporting date submitted by the parties, the diligence in seeking to effect service of process, whether the interests of justice are best served by dismissal or trial of the case, and any other fact or circumstance relevant to a fair determination of the issue. (Cal. Rules of Court, rule 3.1342(e).)  As Plaintiffs have failed to meet their burden, the Court may dismiss the action against Crescenta Valley despite the general policy favoring resolution of cases on the merits. (See Ladd, supra, 230 Cal.App.3d at 1104.)

Factual Background and Analysis

On February 26, 2021, Plaintiff filed the present trip and fall case against Adam F. Goldberg Productions and Sony Pictures Entertainment, Inc., alleging that Defendants removed a bike rack which left a bolt sticking out on the roadway, and Plaintiff tripped over the protruding bolt. On September 6, 2023, Plaintiff added Remote Broadcasting Inc. as a Doe defendant. Defendant Remote Broadcasting now moves the Court to dismiss the action because Defendant was not served within 2 years of the filing of the complaint, and Plaintiff was not diligent in acquiring the identity of Remote Broadcasting. Plaintiff argues that they were diligent in acquiring that information, but Defendant was obstructing them from acquiring such information.

Defendant's motion to dismiss under § 583.250, based on the claim that Defendant was not served within three years from the date Plaintiff filed the complaint, is without merit. The complaint was filed on February 26, 2021, and Defendant was added on September 6, 2023, and served on December 26, 2023, which is less than three years from the filing date.

It is within the court's discretion to consider dismissing the case for failure to serve the complaint within two years. California Code of Civil Procedure § 583.420(a)(1). The plaintiff has the burden of showing excusable delay once a complaint is not served within the two-year period. (Ladd v. Dart Equipment Corp. (1991) 230 Cal. App. 3d 1088, 1099-110.)

Plaintiff failed to meet its burden of proving excusable delay. Plaintiff claims to have conducted extensive discovery to identify the person who instructed Sony Pictures to remove the subject bike rack. However, Plaintiff has not provided evidence detailing these requests. The only evidence presented includes a request for production, an email, and a deposition that took place more than two years after the complaint was filed. Plaintiff has not demonstrated sufficient diligence within the first two years of filing the complaint to discover Defendant’s identity. No evidence of discovery requests, email correspondence, public searches, or other attempts to identify the responsible entity within the first two years were attached to the opposition. Plaintiff alleges that Defendant thwarted her efforts to find out the identity of the responsible entity; however, Plaintiff has failed to provide any evidence supporting this allegation within the first two years of the case. Furthermore, in its reply, Defendant introduced Plaintiff's discovery that was served in the first two years of the case, and that discovery does not show Plaintiff clearly seeking the identity of the persons/entities involved in removing the bike rack.

Because Plaintiff failed to meet its burden of showing excusable delay, Defendant's motion is GRANTED.

PLEASE TAKE NOTICE:¿¿¿¿¿¿ 

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿¿¿ 

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue. 

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.