Judge: Mark E. Windham, Case: BC722729, Date: 2024-05-14 Tentative Ruling

Case Number: BC722729    Hearing Date: May 14, 2024    Dept: 26

Williams v. Hodge, Sr., et al.

MOTION TO DISMISS FOR FAILURE TO PROSECUTE

(CCP §§ 583.310(a), 583.360(a)(2))

TENTATIVE RULING:

Delbert Lindsey Hodge, Sr.’s Motion to Dismiss Action is DENIED.

ANALYSIS:

On September 21, 2018, Plaintiff Brian Williams (“Plaintiffs”) filed this action against Defendant Delbert Lindsey Hodge, Sr. (“Defendant Hodge, Sr.”) and others. The case was originally assigned to a personal injury courtroom and then transferred to an independent calendar courtroom. (Minute Order, 09/23/20.) Proofs of service of the Summons and Complaint were filed in October 2021. From early 2022 to mid-2023, Defendants filed challenges to the pleadings, including the Second and Third Amended Complaints. On May 11, 2023, the Court sustained Defendants’ demurrer to the non-negligence causes of action without leave to amend and set an order to show cause why the action should not be reclassified to a court of limited jurisdiction. (Minute Order, 05/11/23.) On June 27, 2023, the case was reclassified and transferred to the limited jurisdiction court.

On August 2, 2023, Plaintiff filed a Notice of Stay of Proceedings based on a writ of mandate filed on July 25, 2023 with respect to the reclassification order. Defendant filed an answer to the Third Amended Complaint on August 10, 2023. On September 8, 2023, Plaintiff filed another Notice of Stay of Proceedings based on an appeal of the court’s denial of his motion for reconsideration of the order dismissing the Doe defendants. A notice of default was issued with respect to that appeal on March 22, 2024, followed by a notice of non-compliance on April 19, 2024.

Defendant Hodge, Sr. filed the instant Motion to Dismiss on April 16, 2024. Plaintiff filed an opposition on May 1, 2024 and Defendant Hodge, Sr. replied on May 8, 2024. The Court recognizes that Plaintiff’s opposition was served late but finds Defendant Hodge, Sr. was able to make a substantive reply. Therefore, the Court will consider all the papers filed.

Discussion

Defendant Hodge moves to dismiss the action pursuant to Code of Civil Procedure section 583.310 and 583.360, which require that an action be brought to trial within five years of commencement.

An action which is not brought to trial within the prescribed period must be dismissed. (§ 583.360, subd. (a).) These requirements are mandatory “and are not subject to extension, excuse, or exception except as expressly provided by statute.” (§ 583.360, subd. (b).) The purpose of the five-year dismissal statute is to prevent the prosecution of stale claims where defendants could be prejudiced by loss of evidence and diminished memories of witnesses. (Lewis v. Superior  Court (1985) 175 Cal.App.3d 366, 375, 220 Cal.Rptr. 594.) The statute also protects defendants from the annoyance of having unmeritorious claims against them unresolved for unreasonable periods of time. (Ibid.) While the goals of the five-year limit are somewhat analogous to those underlying statutes of limitation, the five-year limit involves policy considerations that are somewhat less crucial because once an action has been filed defendants can take steps to protect their interests. (General Motors Corp. v. Superior Court of Los Angeles County (1966) 65 Cal.2d 88, 91, 52 Cal.Rptr. 460, 416 P.2d 492.)

(Munoz v. City of Tracy (2015) 238 Cal.App.4th 354, 358-259.) “In computing the time within which an action must be brought to trial pursuant to this article, 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; (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.” (Code Civ. Proc., § 583.340.) The five-year deadline was extended by six months due to the COVID-19 pandemic. (Cal. Rules of Court, appen. I, emergency rule 10(a).)

Thie action was commenced on September 21, 2018. On July 25, 2023—four years, ten months, and four days later—Plaintiff filed an appeal of the Court’s order reclassifying the action to the limited jurisdiction court. A notice of stay with respect to the appeal was filed by Plaintiff on August 2, 2023 but incorrectly referred to in the docket as a “bankruptcy stay.” That appeal, No. B330457, was closed on August 2, 2023, with Plaintiff’s petition for review denied on September 27, 2023. Plaintiff filed another appeal on September 8, 2023, designated No. 23APLC00255, which is currently still pending with the Appellate Division of the Superior Court. 

Defendant Hodge argues that none of these stays have been sanctioned by the Court and in support of this argument points to the order dated March 14, 2024. In that order, the Court ruled that the case was stayed in error because there is no bankruptcy. (Minute Order, 03/14/24.) It is true that there has been no bankruptcy stay in this action and the designation of any stay as a “bankruptcy stay” was incorrect. However, the Motion does not discuss the effect of Plaintiff’s appeals on the time in which the case should be brought to trial. As pointed out in Plaintiff’s opposition, Code of Civil Procedure section 916 states: “Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ. Proc., § 916, subd. (a) [emphasis added].)

Therefore, the Motion has not demonstrated that the five-year plus six-month deadline has passed when taking into account the appeals filed by Plaintiff.

Conclusion

Delbert Lindsey Hodge, Sr.’s Motion to Dismiss Action is DENIED.

Court clerk to give notice.