Judge: Lisa R. Jaskol, Case: 21STCV34134, Date: 2023-07-21 Tentative Ruling

Case Number: 21STCV34134    Hearing Date: July 21, 2023    Dept: 28

          Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND 

On September 15, 2021, Plaintiff Patricia Szeliga (“Plaintiff”) filed this action against Defendants Francisco Rivera (“Rivera”), VW Credit Leasing (“VW”) and Exis Residencies, Inc. (“Exis”) for motor vehicle and general negligence. 

On December 22, 2021, VW filed an answer. On March 4, 2022, the Court dismissed VW without prejudice at Plaintiff’s request. 

On April 26, 2022, Exis filed an answer and a Cross-Complaint against Cross-Defendant Maureen Lavette (“Lavette”) for equitable indemnification, contribution, apportionment of fault and declaratory relief. On August 11, 2022, Lavette filed an answer. 

On July 28, 2022, Rivera filed an answer. 

On June 26, 2023, Rivera and Exis (“Moving Defendants”) filed a Motion to Dismiss to be heard on July 21, 2023. On July 10, 2023, Plaintiff filed an opposition. On July 14, 2023, Moving Defendants filed a reply. 

Trial is currently set for January 17, 2024. 

PARTIES’ REQUESTS 

Moving Defendants request that the Court dismiss this action. 

Plaintiff requests that the Court deny the motion. 

LEGAL STANDARD 

“On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.”  (Code Civ. Proc., § 377.31; see also Code Civ. Proc., § 377.32.)  

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion . . . [¶¶] (3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8.”  (Code Civ. Proc., § 418.10, subd. (a)(3).) 

Code of Civil Procedure section 583.130 provides: “It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition. Except as otherwise provided by statute or by rule of court adopted pursuant to statute, the policy favoring the right of parties to make stipulations in their own interests and the policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter.” 

Nonetheless, “[t]he court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.”  (Code Civ. Proc., § 583.130, subd. (a); see Cal. Rules of Court, rules 3.1340, 3.1342.) 

The court may dismiss an action for delay in prosecution after one of the following conditions has occurred: 

“(1) Service is not made within two years after the action is commenced against the defendant. 

“(2) The action is not brought to trial within the following times: 

“(A) Three years after the action is commenced against the defendant unless otherwise prescribed by rule under subparagraph (B). 

“(B) Two years after the action is commenced against the defendant if the Judicial Council by rule adopted pursuant to Section 583.410 so prescribes for the court because of the condition of the court calendar or for other reasons affecting the conduct of litigation or the administration of justice.”

 (Code Civ. Proc., § 583.420, subd. (a)(1), (a)(2).) 

DISCUSSION 

A.   Judicial Notice 

The Court grants Moving Defendants’ request to take judicial notice of the Declaration of Ian Szeliga In Support of Ex Parte Application to Continue Trial Date, filed June 28, 2023 as an exhibit to the ex parte application.  (Evid. Code, §§ 452, subd. (d), 453.) 

B.   Motion to dismiss 

Moving Defendants request that the Court dismiss the action because Plaintiff passed away in August 2022 and Plaintiff’s counsel have not yet filed a motion to designate a representative or successor in interest.  Moving Defendants argue that, due to statutory deadlines and a scheduled probate hearing, Plaintiffs’ counsel cannot schedule a hearing on a motion to designate a successor in interest until after the scheduled trial date.  (After Moving Defendants made this argument, however, the Court has continued the trial from September 15, 2023 to January 17, 2024.)  Moving Defendants assert they have been prejudiced by Plaintiff’s counsel’s inaction. 

In opposition, Plaintiff’s counsel argue they have been working to identify the correct person to take over Plaintiff’s case as successor in interest. Counsel present a detailed account of the obstacles they have faced in moving the case forward, including disputes between relatives of the deceased Plaintiff.  Plaintiff’s counsel have prepared a motion to substitute a successor in interest as soon as the probate court names a successor in interest. 

The case is not yet two years old. Plaintiff’s counsel have presented evidence that they have worked actively since Plaintiff died in August 2022 to move the case to trial but have faced obstacles beyond their control.  The upcoming hearing in the probate court may help resolve some issues that have prevented further progress in finding a successor in interest for this case. 

Accordingly, the Court declines to exercise its discretion to dismiss the case. 

CONCLUSION 

The motion to dismiss of Defendants Francisco Rivera and Exis Residencies, Inc. is DENIED.

Moving parties are ordered to give notice of this ruling.