Judge: Lee S. Arian, Case: 22STCV11261, Date: 2023-12-07 Tentative Ruling

Case Number: 22STCV11261    Hearing Date: December 7, 2023    Dept: 27

HEARING DATE:   December 7, 2023                                                       JUDGE /DEPT: Arian/27

CASE NAME:           Via Champ v. United Parcel Service, et al.

CASE NUMBER:     22STCV11261                                                COMPL. FILED:     04-01-2022

NOTICE:                   OK                                                                  DISC. C/O:                N/A

                                                                                                            MOTION C/O:          N/A

PROCEEDINGS:     MOTION TO DISMISS

MOVING PARTY:   Defendant United Parcel Service

RESP. PARTY:         None

MOTION TO DISMISS FOR FAILURE TO PROSECUTE

 (CCP § 583.410, CRC 3.1342)

TENTATIVE RULING:

The Motion to Dismiss, filed by Defendant United Parcel Service, is GRANTED without prejudice.

SERVICE:

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                     OK

[   ] Correct Address (CCP § 1013, 1013a)                                        OK

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                       OK

OPPOSITION:          None filed as of December 4, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of December 4, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                    Background

On April 1, 2022, Via Champ (“Plaintiff”), filed a Complaint against United Parcel Service (“Defendant”) for personal injuries arising from an April 3, 2020 motor vehicle and pedestrian incident. The Defendant's employee, Summit Prasertsit, was maneuvering his vehicle away from a parking spot when his truck hit a metal bench. The Plaintiff alleges she was seated on the bench at the time of the incident.

On May 18, 2022, Defendant filed and served their answer. Defendant also served Form Interrogatories, Set One; Special Interrogatories, Set One; and Request for Production of Documents, Set One. Responses were initially due on June 21, 2022.

On June 17, 2022, Plaintiff’s Counsel requested a thirty-day extension to July 21, 2022, to provide discovery responses.

On August 11, 2022, Plaintiff granted another extension to provide discovery responses.

On September 26, 2022, Plaintiff’s counsel informed Defense counsel, Themba Nelson, that they lost contact with Plaintiff and could not provide discovery responses or a medical update. Plaintiff’s lead counsel, Mr. Rickie Ivie, was engaged in a trial but would file a motion requesting to be relieved as counsel.

On October 21, 2022, Plaintiff’s counsel continued to indicate that they intended to withdraw as counsel.

On December 20, 2022, Plaintiff’s counsel indicated that they still did not contact Plaintiff but believed that she was incapacitated and/or hospitalized.

As of February 24, 2023, Defense counsel called Plaintiff’s counsel to confirm that they had not found Plaintiff.

On March 13, 2023, Plaintiff’s counsel hired an investigator to locate Plaintiff, and told Defense counsel that if they were not successful, they would make a motion to be relieved as counsel.

On June 21, 2023, Plaintiff’s counsel told Defense counsel that they received information from their investigator which could lead to the location of Plaintiff and requested another extension. Furthermore, on July 7, 2023, Plaintiff’s counsel indicated that they spoke with Plaintiff’s sister, Georgia, to help aid in the search for Plaintiff. However, all attempts to locate Plaintiff failed.

On July 18, 2023, the parties signed and filed a joint stipulation to continue the trial date. Subsequently, the court granted the request and agreed to continue the trial from September 29, 2023, to February 27, 2024.

On August 4, 2023, Defense counsel spoke with Plaintiff’s counsel, Mr. Ivie, who informed him that they still had not been in contact with Plaintiff. Plaintiff’s family has also not been able to reach Plaintiff to inform her that her father recently passed away. Counsel requested additional time to locate Plaintiff, and if unsuccessful, they would not object to a motion to dismiss this case and would sign a declaration to that effect if necessary.

On August 11, 2023, Plaintiff’s counsel indicated that they would have no opposition to any motion to dismiss due to their inability to locate Plaintiff and their inability to continue to assist her in the prosecution of this matter.

            On September 19, 2023, Defendant United Parcel Service filed the instant Motion to Dismiss (“Motion”).  No opposition has been filed.

II.                 Legal Standard & Discussion

The Moving Party moves to dismiss the Complaint for failure to prosecute pursuant to California Code of Civil Procedure § 583.410 because Plaintiff failed to respond to any discovery responses due on June 21, 2022 and her counsel has lost all contact with her. Moreover, Plaintiff’s counsel did not oppose the motion.

Under Cal. Code Civ. Proc. § 583.410, the court may, in its discretion, dismiss an action for delay in prosecution if it deems such action appropriate under the circumstances. In considering a motion for discretionary dismissal, the court is guided by the factors outlined in California Rule of Court 3.1342, as established in Corrinet v. Bardy, 35 Cal.App.5th 69, 71 (Cal. Ct. App. 2019.) Rule 3.1342 states that a proper determination of a motion to dismiss for delay in prosecution must consider: (1) The court's case file, declarations, and supporting data from the parties, as well as the availability of essential parties for service of process; (2) Diligence in seeking to effect service of process; (3) Engagement in settlement negotiations or discussions; (4) Diligence in pursuing discovery or other pretrial proceedings, including extraordinary relief; (5) The nature and complexity of the case; (6) Applicable laws and related litigation; (7) Extensions of time or delays attributable to either party; (8) Court calendar conditions and earlier trial date availability; (9) Whether justice is best served by dismissal or trial; or (10) Any other relevant fact or circumstance.

Here, Rule 3.1342’s factors 4,7, and 10 are at issue. Defendant served Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One to Plaintiff on May 18, 2022 which were initially due on June 21, 2022. (Themba Nelson’s Declaration, ¶2.) Defendant gave Plaintiff about five separate extensions of time to respond; the last extension provided Plaintiff until July 19, 2023 to respond. (Id. at ¶3; Exhibit B.) To this date, the Plaintiff failed to provide responses to the discovery requests, nor has she been accessible to her legal representation or shown any initiative in advancing the prosecution of this case. (Id. at ¶11; Exhibit B.) Importantly, Plaintiff’s counsel indicated that they would not oppose the motion due to their inability to locate the Plaintiff. (Id. at ¶¶9,10; Exhibit B.) Thus, Plaintiff’s failure in diligently pursuing discovery even with multiple extensions shows that the Court may dismiss the action.

Accordingly, the Court finds that Defendant has presented sufficient evidence or arguments demonstrating that the Court must dismiss the action because of Plaintiff’s failure to respond to discovery responses for over a year and her lack of contact with her counsel.  Defendant’s Motion to Dismiss is GRANTED.

III.              Conclusion

For the foregoing reasons, the Motion to Dismiss, filed by Defendant United Parcel Service, is GRANTED without prejudice.

Moving party is to give notice.

Dated: December 7, 2023                                                                   __________________________

                                                                                                Hon. Lee S. Arian

                                                                                                Judge of the Superior Court