Judge: Lee S. Arian, Case: 22STCV28396, Date: 2025-05-14 Tentative Ruling

Case Number: 22STCV28396    Hearing Date: May 14, 2025    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Background

On August 31, 2022, Plaintiff filed the present action against Defendant Duncan Wright. Plaintiff was unable to effectuate service on Defendant and, on July 25, 2024, Plaintiff’s counsel submitted an initial application for service by publication, which the Court denied. A renewed application was filed on October 10, 2024, and was subsequently granted. On November 27, 2024, Defendant filed an answer. On December 6, 2024, Defendant propounded written discovery. That same day, Plaintiff’s counsel requested an extension, citing difficulty locating Plaintiff. On January 22, 2025, Plaintiff’s counsel informed Defendant’s counsel that Plaintiff was deceased. Counsel provided a death certificate on February 26, 2025.

On March 20, 2025, Defendant filed this motion to dismiss, with a May 14 hearing date.  Plaintiff filed and served an opposition on May 1, 2025.[1]  As of the filing of this motion, no party has been substituted in place of the deceased Plaintiff. Defendant asserts that Plaintiff’s counsel failed to act diligently in confirming Plaintiff’s death or substituting a successor-in-interest and moves to dismiss the action.

Legal Standard

Under Code of Civil Procedure §§ 583.410(a) and 583.420(a)(2)(B), a court may, in its discretion, dismiss an action for delay in prosecution if the case is not brought to trial within two years after it is commenced.

California Rules of Court, rule 3.1340(a) allows a court to dismiss an action that has not been brought to trial or conditionally settled within two years. Rule 3.1342(e) lists factors for the Court to consider, including:

(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.

Discussion

Defendant’s argument rests on two main points: first, that although the case was filed on August 31, 2022, Defendant was not served until late 2024; and second, that Plaintiff passed away in January 2024, yet no substitution of a successor-in-interest has been made.

As to the delay in service, Plaintiff’s counsel made sustained and repeated efforts to effectuate personal service before seeking leave for publication. According to the Declaration of Due Diligence, Plaintiff attempted to serve Defendant at multiple known and confirmed addresses a total of approximately 11 times between 2022 and 2023. These efforts included speaking with neighbors who confirmed Defendant resided at the address and process servers noted circumstances consistent with intentional evasion of service. Only after exhausting all reasonable means did Plaintiff’s counsel submit an application for service by publication in July 2024.

As to the second issue, Plaintiff’s death in January 2024 was only discovered when Plaintiff’s counsel attempted to contact her to respond to discovery served by Defendant in December 2024. Upon learning of Plaintiff’s possible demise, counsel took prompt steps to confirm it, obtain the death certificate, and locate a successor. Despite diligent efforts, no next of kin could be identified. On April 2, 2025, Plaintiff’s counsel filed a probate petition seeking to be appointed as Special Administrator of Ms. Stricker’s estate for the limited purpose of prosecuting this lawsuit. That petition is set to be heard the same day as this motion. Plaintiff has demonstrated diligence in responding to the news of Plaintiff’s passing.

In light of the Court’s overarching policy favoring resolution of cases on their merits, and considering Plaintiff’s reasonable diligence in pursuing both service and substitution, the Court denies the motion.

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’s 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.