Judge: Lee S. Arian, Case: 22STCV15807, Date: 2023-12-08 Tentative Ruling

Case Number: 22STCV15807    Hearing Date: December 8, 2023    Dept: 27

HEARING DATE:   December 8, 2023                                                       JUDGE /DEPT: Arian/27

CASE NAME:           Ricardo Contreras v. El Gallo Market

CASE NUMBER:     22STCV15807                                                COMPL. FILED:     05-12-2022

NOTICE:                                                                                           DISC. C/O:                N/A

                                                                                                            MOTION C/O:          N/A

PROCEEDINGS:     MOTION TO DISMISS

MOVING PARTY:   Defendant El Gallo Market  

RESP. PARTY:         None

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM & STATUTORY LIMITATIONS

 (CCP § 583.410)

TENTATIVE RULING:

The Motion to Dismiss, filed by Defendant El Gallo Market, is DENIED without prejudice.

SERVICE:

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                     NO

[   ] Correct Address (CCP § 1013, 1013a)                                        NO

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                       NO

OPPOSITION:          None filed as of December 5, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of December 5, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                    Background

¿On May 12, 2022, Ricardo Contreras (“Plaintiff”), filed this premises liability action against El Gallo Market (“El Gallo”), and Does 1 to 50 (collectively, “Defendants.”) The Complaint has inconsistent incident dates because May 18, 2020 and May 18, 2021 are both stated. Plaintiff alleges that a sliding refrigerator door on Defendant El Gallo’s premises malfunctioned and struck Plaintiff’s hand. As a result, Plaintiff served Defendant with the summons, complaint, and statement of damages on June 3, 2022 by substituted service. Default was entered against Defendant El Gallo on September 19, 2022. 

On October 6, 2023, Defendant El Gallo filed this motion to dismiss without proof of service.

Plaintiff did not file an opposition.

II.                 Legal Standard & Discussion

The Moving Party moves to dismiss the Complaint for failure to state a claim and argues that the statute of limitations bars the claim. Plaintiff did not file an opposition.

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 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.

Personal Injury: Statute of Limitations

Two years from the injury. If the injury was not discovered right away, then it is 1 year from the date the injury was discovered.

Here, Defendant fails to include any law, declarations, supporting data from the parties, and proof of service since only a two-page Motion to Dismiss was filed. Moreover, Defendant alleges that Plaintiff fails to state a claim because it is “unclear how a sliding door fridge caused serious bodily harm”; however this is a negligence and premises liability case where Plaintiff could provide contradictory evidence. Although the Defendant discusses the two-year personal injury statute of limitations, the Complaint is unclear whether the incident occurred on May 18, 2020 or May 18, 2021.

Accordingly, the Court finds that Defendant has not presented sufficient evidence or arguments showing that the Court must dismiss the action because of Plaintiff’s failure to state a claim or based on statutory limitations.

Defendant’s Motion to Dismiss is DENIED without prejudice.

III.              Conclusion

For the foregoing reasons, the Motion to Dismiss, filed by Defendant El Gallo Market, is DENIED without prejudice.

Moving party is to give notice.

Dated: December 8, 2023                                                                   __________________________

                                                                                                Hon. Lee S. Arian

                                                                                                Judge of the Superior Court