Judge Mark A. Young, Case Number: SC128992, Date: 2024-01-25 Tentative Ruling

Judge: Mark A. Young, Case: SC128992, Date: 2024-01-25 Tentative Ruling

Case Number: SC128992 Hearing Date: January 25, 2024 Dept: M

CASE NAME: Saghafi v. Access Specialty Animal Hospitals, et al.

CASE NO.: SC128992

MOTION: Motion to Dismiss

HEARING DATE: 1/25/2024

Legal Standard

Code of Civil Procedure (“CCP”) section 583.130 provides that 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.”

CCP section 583.310 requires that an “action shall be brought to trial within five years after the action is commenced against the defendant.” Further, section 583.360 provides, in relevant part: “(a) An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article. [¶] (b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute." (Emphasis added.)

In computing the time within which an action must be brought to trial there shall be excluded the time during which any of the following conditions existed:

(a) The jurisdiction of the court to try the action was suspended.

(b) Prosecution or trial of the action was stayed or enjoined

or futile.

(CCP §583.340.)

Analysis

Defendants Richard Mills, Howard Liberson, Advanced Critical Care, Emergency and Specialty Services – Los Angeles, Advanced Critical Care, Emergency and Specialty Services – South Bay, Advanced Critical Care, Emergency and Specialty Services – San Fernando Valley, Advanced Critical Care, Emergency and Specialty Services – Bakersfield, and Advanced Critical Care & Internal Medicine Inc. (Defendants) move for an order dismissing Plaintiff Roya Saghafi’s action for failure to prosecute under CCP section 583.360.

This action was filed more than five years and six months ago on March 13, 2018. There is no dispute that this action was not brought to trial within the times prescribed. Further, the Court observes no grounds for extension under section 583.340. The record shows that the action was never suspended or stayed. Plaintiff offers no persuasive evidence that it was impossible, impracticable or futile to bring this action to trial at any point. Plaintiff complains that Defendants had multiple counsel throughout this action, hindering the prosecution of this matter. (Buckley Decl., ¶¶ 9-11.) However, Defendants change of counsel did not make it impossible, impracticable or futile to bring the action forward to trial. Plaintiff also does not explain how any acts in a separate action would affect Plaintiff’s ability to prosecute this action. (Id., ¶ 10.) Plaintiff has further failed to establish reasonable diligence at all stages of this proceeding. (See Bruns v. E-Commerce Exchange Inc., (2011) 51 Cal. 4th 717 at 73.) Thus, dismissal is mandatory without exception.

In opposition, Plaintiff contends that there was an oral stipulation by prior Defendants’ counsel. (Buckley Decl., ¶11.) More specifically, counsel claims that Defendants’ third counsel of record, Dona Abdo, “stipulated with me and agreed we would waive the five year rule.” (Id. ¶ 11, emphasis added.) At best, this shows that counsel intended to stipulate at some point in the future, but fails to establish the length of the waiver. In any event, Plaintiff provides no corroborating, objective evidence that the parties ever agreed to such a stipulation. Plaintiff only supports this fact with counsel’s vague recollection regarding this purported stipulation. Counsel explains that “[t]his stipulation occurred during the Plaintiff’s deposition of one of the individual veterinary Defendants.” (¶ 12.) Counsel recollects “that this discussion had occurred on the record but upon reviewing the deposition transcript I realize the discussion occurred while off the record during one of the breaks.” (¶ 17.) Counsel promises that he relied on this purported representation, and if there had not been this representation, counsel would have forced this matter forward. (¶¶ 11, 19.) Plaintiff also provides that they “recall there was discussion about a five year rule” at a deposition, and that the attorneys “indicated” they would waive this rule so the case could be fully prepared. (Saghafi Decl., ¶¶ 3-6.) Plaintiff also admits to not having an independent recollection of this, as he relied on counsel’s explanation after the fact. (Id. ¶ 6.) This evidence is insufficient to show that there was, in fact, a stipulation by Defendants. If the parties actually stipulated to waiving the five year rule, the Court would expect there to be some kind of paper trial or discussion by counsel. At a minimum, Plaintiff’s counsel should have reduced this stipulation to writing or put it on the record at the deposition. The fact that there is no record of this critical stipulation weighs heavily against Plaintiff’s arguments.

Furthermore, the May 18, 2022, stipulation between the parties to continue the trial undercuts Plaintiff’s contention that Ms. Abdo stipulated to continue the five year limitation period. (Opp., Exh. 6.) The stipulation specifically identified September 13, 2023, as the deadline. (Id.) Defendant is correct that, logically, if Ms. Abdo had previously agreed to waive the five year rule, that would have been set forth in this stipulation. At the least, the Court would have expected some email or letter exchanges between the parties addressing the deadline.

Plaintiff has also failed to establish her diligence in prosecuting this case. On May 20, 2022, the Court vacated the existing trial date and ordered the parties to submit long cause trial documents by the week of July 11, 2022, and to participate in a Mandatory Settlement Conference on July 5, 2022. Neither occurred and Plaintiff then failed to attend a July 25, 2022, status conference. Other than a motion to consolidate this case to a number of other cases – which had never been related – nothing of substance occurred on the matter for well over a year. Thus, Plaintiff cannot meet the required impossible, impracticable, or futile standard.

Here, Plaintiff has failed to establish his own due diligence and, in addition, whether it was impossible, impracticable, or futile for the plaintiff to comply with the statutory five year constraint due to causes beyond his or her control. Accordingly, the motion is GRANTED. The matter is DISMISSED pursuant to section 583.340.