Judge Lynne M. Hobbs, Case Number: 20STCV24346, Date: 2024-04-12 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV24346, Date: 2024-04-12 Tentative Ruling

Case Number: 20STCV24346 Hearing Date: April 12, 2024 Dept: 30

CHAO MEI MA, et al. vs AMERICAN ASIA TRAVEL CENTER, INC., A CALIFORNIA CORPORATION, et al

TENTATIVE

Defendant Mountain Frontier, LLC’s motion to dismiss for delay in prosecution is GRANTED. Moving party is ordered to give notice.

Legal Standard

CCP § 583.410(a) states: “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.”

CCP § 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.

Moreover, California Rules of Court, Rule 3.1340(a) provides, 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.

In addition, in ruling on a motion to dismiss under CCP § 583.410, 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.

(Cal. Rules of Court, Rule 3.1342(e).)

“In order to avoid a dismissal for delay in prosecution, the plaintiff must show a reasonable excuse for such delay; once that showing is made, the trial court must consider all pertinent factors, including those under [California Rules of Court, rule 3.1342] and any prejudice to the defendant from the delay, before deciding whether to dismiss. However, where there has been a protracted and unexplained delay in prosecution, the defendant need not make an affirmative showing of prejudice. Prejudice is inferred from the delay itself.” (Wagner v. Rios (1992) 4 Cal.App.4th 608, 611–612 [citations omitted].)

“ ‘The competing considerations to be evaluated are the policies of discouraging stale claims and compelling reasonable diligence balanced against the strong public policy which seeks to dispose of litigation on the merits rather than on procedural grounds.’ [Citation.] ‘However, it is now well established that the policy [of preferring to dispose litigation on the merits] only comes into play when a plaintiff makes a showing of some excusable delay.’ [Citation.]” (Van Keulen v. Cathay Pacific Airways, Ltd. (2008) 162 Cal.App.4th 122, 131.)

Discussion

Defendant avers Plaintiff has not been diligent in prosecuting this case. On April 21, 2023, the Court granted Defendant’s motion to dismiss based on inconvenient forum, found that California was not the proper forum for this matter, and that Wyoming was a suitable alternative forum. The Court then set an Order to Show Cause hearing to determine the status of Plaintiffs’ filing in Wyoming.

After the April 21, 2023, ruling, the parties appeared at five order to show cause hearings. At all the hearings, Plaintiffs’ counsel indicated to the Court that they were hiring a Wyoming attorney and were then waiting for documents from the Chinese government in order to file in the Federal Courthouse. (Marnesi Decl., 5.) On February 6, 2024, the Court lifted the stay and Plaintiffs once again did not have any updates about the status of the filing in Wyoming. (Id., 7.) On February 16, 2024, Defendant appeared ex-parte to reinstate the stay. During that hearing, the court set a hearing date for the motion to dismiss. During this hearing, Plaintiffs’ counsel did not provide an update as to the status of the filing in Wyoming. (Id., 8.)

Here, the action is more than two years old and has not been brought to trial or conditionally settled in that time. Further, Defendant was not served with the summons and complaint within two years after the case was commenced.

Further, the Court has already determined California is not a suitable forum. Plaintiffs had approximately one year to file the complaint in Wyoming, have appeared at seven hearings, and have no real updates as to the status of filing in Wyoming. Moreover, as Defendant has argued, there was a delay in service. Plaintiffs filed their complaint on June 26, 2020, and Defendant Mountain Frontier, LLC was not served until January 24, 2023. Defendant Mountain Frontier, LLC was served over two and a half years after the filing of the complaint. In addition, Defendant also explained there have been no settlement discussions, no discovery completed, and Defendants have given Plaintiffs no extensions. Additionally, it appears the interest of justice are best served by a dismissal, where the incident occurred on June 29, 2018, almost six years ago.

Although discretionary dismissal statute was enacted for benefit of defendants named in lawsuits, it was also enacted for public's benefit, i.e., to expedite administration of justice by de-clogging court calendar and putting end to elderly cases. (Reid v. Balter (1993) 14 Cal. App. 4th 1186, 1196.) In considering a motion for discretionary dismissal for delay in prosecution, the policy of preferring to dispose litigation on the merits only comes into play when a plaintiff makes a showing of some excusable delay. (Van Keulen v. Cathay Pac. Airways, Ltd. (2008) 162 Cal. App. 4th 122, 131.) Policy favoring disposition of case on its merits did not preclude trial court from entering discretionary dismissal order, where plaintiff did not make showing of some excusable delay. (Ladd v. Dart Equip. Corp. (1991) 230 Cal. App. 3d 1088, 1104.)

Here, Plaintiffs failed to file an opposition and therefore have failed to provide any reasons demonstrating excusable delay. A plaintiff's failure to file 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.” (CRC 3.1342(b) [emphasis added].) Therefore, the Court will consider Plaintiff’s failure to oppose as an admission that the motion is meritorious.

Based on the foregoing, and given Plaintiffs’ lack of opposition to meet their burden of showing excusable delay, the Court will exercise its discretion and GRANT Defendant’s motion to dismiss for delay in prosecution.