Judge: Lisa R. Jaskol, Case: 21STCV35243, Date: 2024-12-26 Tentative Ruling

Case Number: 21STCV35243    Hearing Date: December 26, 2024    Dept: 28

          Having considered the moving papers, the Court rules as follows.

BACKGROUND 

A.   Previous proceedings 

On September 23, 2021, Plaintiff Nancy Stewart (“Nancy Stewart”) filed this action against Defendants Audrey Forte (“Forte”) and Does 1-50 for wrongful death-negligence. 

On November 3, 2021, Forte filed an answer. 

On October 11, 2022, Forte filed a cross-complaint against Cross-Defendants Estate of Westin Lee Stewart, Deceased, Nancy Stewart, an individual and successor in interest to Westin Lee Stewart, Deceased, and Roes 1 through 100 for negligence, negligence per se, equitable indemnity, contribution, and declaratory relief. 

On June 1, 2023, Cross-Defendants Nancy Stewart and Estate of Westin Lee Stewart (“Cross- Defendants”) filed a motion to strike the cross-complaint, arguing the cross-complaint was time-barred and Forte did not obtain leave of Court to file the cross-complaint. 

On June 20, 2023, Cross-Defendant Estate of Westin Lee Stewart filed a stipulation stating that (1) Forte would limit any potential recovery for her alleged injuries and damages against the Estate of Westin Lee Stewart to the per person limit of $25,000.00 available under the Westin Lee Stewart’s automobile insurance policy, (2) the limitation applied only to Forte’s claims against the Estate of Westin Lee Stewart and Westin Lee Stewart, and (3) Forte would file a dismissal with prejudice of her claims against Nancy Stewart, an individual and successor in interest to Westin Lee Stewart.  Counsel for Cross-Defendant Estate of Westin Lee Stewart and Forte signed the stipulation. 

On June 26, 2023, in reliance on the stipulation, Cross-Defendants took their motion to strike Forte’s cross-complaint off calendar. 

On June 30, 2023, Cross-Defendants filed an answer to Forte’s cross-complaint. 

On May 29, 2024, Nancy Stewart filed a notice of partial settlement stating that she had reached a settlement with Forte and anticipated dismissing her complaint against Forte within 45 days. 

On June 26, 2024, Cross-Defendants filed a notice stating that on May 23, 2024, their counsel learned that Forte had passed away the week of May 16, 2024. 

On July 30, 2024, the Court dismissed Nancy Stewart’s action against Forte with prejudice at Nancy Stewart’s request. 

On October 22, 2024, the Court granted the unopposed motion of Cross-Defendant Nancy Stewart as an individual and as successor in interest to Westin Lee Stewart, deceased, to enforce Forte’s stipulation and dismiss Forte’s cross-complaint against Nancy Stewart under Code of Civil Procedure section 664.6. The Court dismissed Nancy Stewart, as an individual and as successor in interest to Westin Lee Stewart, deceased, with prejudice from Audrey Forte’s cross-complaint filed on October 11, 2022. 

Trial is currently scheduled for March 7, 2025. 

B.   This motion 

On October 18, 2024, Cross-Defendants Nancy Stewart as an individual and as successor in interest to Westin Lee Stewart, deceased, and Estate of Westin Lee Stewart filed a motion to dismiss Forte’s cross-complaint for failure to prosecute.  The motion was set for hearing on December 26, 2024.  No opposition has been filed. 

LEGAL STANDARD 

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.” 

(Code Civ. Proc., § 583.130.) 

Code of Civil Procedure section 583.410 provides: 

“(a) The 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. 

“(b) Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.” 

(Code Civ. Proc., § 583.410.) 

Code of Civil Procedure section 583.420 provides: 

“(a) The court may not dismiss an action pursuant to this article for delay in prosecution except 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. 

“(3) A new trial is granted and the action is not again brought to trial within the following times: 

“(A) If a trial is commenced but no judgment is entered because of a mistrial or because a jury is unable to reach a decision, within two years after the order of the court declaring the mistrial or the disagreement of the jury is entered. 

“(B) If after judgment a new trial is granted and no appeal is taken, within two years after the order granting the new trial is entered. 

“(C) If on appeal an order granting a new trial is affirmed or a judgment is reversed and the action remanded for a new trial, within two years after the remittitur is filed by the clerk of the trial court. 

“(b) The times provided in subdivision (a) shall be computed in the manner provided for computation of the comparable times under Articles 2 (commencing with Section 583.210) and 3 (commencing with Section 583.310).” 

(Code Civ. Proc., § 583.420.) 

          “A discretionary dismissal under [Code of Civil Procedure section 583.410] (or for other delay in prosecution) is ‘without prejudice’ to renewed litigation.”  (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 11:190.2, p. 11-83.) 

California Rules of Court, rule 3.1340(a), provides: 

“(a) Discretionary dismissal two years after filing 

“The court on its own motion or on motion of the defendant may dismiss an action under Code of Civil Procedure sections 583.410-583.430 for delay in prosecution if the action has not been brought to trial or conditionally settled within two years after the action was commenced against the defendant.” 

(Cal. Rules of Court, rule 3.1340(a).) 

California Rules of Court, rule 3.1342, provides: 

“(a) Notice of motion 

“A party seeking dismissal of a case under Code of Civil Procedure sections 583.410-583.430 must serve and file a notice of motion at least 45 days before the date set for hearing of the motion. The party may, with the memorandum, serve and file a declaration stating facts in support of the motion. The filing of the notice of motion must not preclude the opposing party from further prosecution of the case to bring it to trial. 

“(b) Written opposition 

“Within 15 days after service of the notice of motion, the opposing party may serve and file a written opposition. The failure of the opposing party to serve and file a written opposition may be construed by the court as an admission that the motion is meritorious, and the court may grant the motion without a hearing on the merits. 

“(c) Response to opposition 

“Within 15 days after service of the written opposition, if any, the moving party may serve and file a response. 

“(d) Reply 

“Within five days after service of the response, if any, the opposing party may serve and file a reply. 

“(e) Relevant matters 

“In ruling on the motion, the court must consider all matters relevant to a proper determination of the motion, 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. 

“The court must be guided by the policies set forth in Code of Civil Procedure section 583.130.” 

“(f) Court action 

“The court may grant or deny the motion or, where the facts warrant, the court may continue or defer its ruling on the matter pending performance by either party of any conditions relating to trial or dismissal of the case that may be required by the court to effectuate substantial justice.” 

(Cal. Rules of Court, rule 3.1342.) 

DISCUSSION 

On October 11, 2022, Forte filed a cross-complaint against Cross-Defendants Estate of Westin Lee Stewart, Deceased, Nancy Stewart, an individual and successor in interest to Westin Lee Stewart, Deceased, and Roes 1 through 100 for negligence, negligence per se, equitable indemnity, contribution, and declaratory relief. 

Cross-Defendant Estate of Westin Lee Stewart now moves to dismiss the cross-complaint for failure to bring it to trial within two years.  (Nancy Stewart also filed the motion, but the Court dismissed her from the cross-complaint on October 22, 2024.) 

The Court has considered the factors listed in California Rules of Court, rule 3.1342(e), and the policies listed in Code of Civil Procedure section 583.130 and concludes that dismissal is appropriate based on Forte’s failure to prosecute the cross-complaint and the failure to name a successor-in-interest to Forte. Therefore, the Court exercises its discretionary authority under Code of Civil Procedure section 583.420, subdivision (a)(2)(B), and California Rules of Court, rule 3.1340(a), and dismisses Forte’s cross-complaint against Cross-Defendant Estate of Westin Lee Stewart, Deceased, without prejudice. 

CONCLUSION 

The Court GRANTS Cross-Defendant Westin Lee Stewart, Deceased’s motion to dismiss the cross-complaint filed by Cross-Complainant Audrey Forte on October 11, 2022.  The Court dismisses the cross-complaint without prejudice under Code of Civil Procedure section 583.420, subdivision (a)(2)(B), and California Rules of Court, rule 3.1340(a). 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.