Judge: Mark H. Epstein, Case: 19SMCV01876, Date: 2023-02-07 Tentative Ruling

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Case Number: 19SMCV01876    Hearing Date: February 7, 2023    Dept: R

The court is in receipt of plaintiff’s supplemental declaration.  In it, he states that he is not a sophisticated litigant.  He acknowledges that the original trial date was December 2021 but he had medical issues and there was COVID so he could not prepare for trial.  He states that his lawyer abandoned him because he could not pay the fees.  He admits he attended a Zoom hearing where the trial was continued to December 2022.  The final status conference was set for December 5, 2022, but plaintiff says that he mis-calendared it as being set on December 9, 2022.  He says that he looked on the court’s website on December 7, 2022, and saw that the hearing had been held.  He states that he called the court right away and the date of December 5, 2022, was confirmed as the hearing date.  On January 5, 2023, plaintiff appeared in court (which was the date that had been set for an OSC re: Dismissal for Failure to Appear) and explained the error.

It is worth going through the docket.  Plaintiff filed the complaint on October 23, 2019.  He sued defendant Safaee claiming that he had not been paid for work he did to property defendant owned.  He also sought to foreclose on a Mechanic’s Lien.  He filed a proof of service of the complaint showing a service date of December 7, 2019.  Defendant filed a cross-action on January 16, 2020, asserting that plaintiff’s work was substandard and unfinished and that the contract did not comply with applicable law and that plaintiff owed defendant money.  The cross-complaint also sued Golden State Claims Adjusters, LLC, which provided a surety bond for plaintiff’s work.  The cross-complaint was amended on January 31, 2020.  On February 6, 2020, cross-complainant dismissed the bonding company.  Plaintiff did not initially answer the cross-complaint, but did post jury fees on March 12, 2020.  He filed a CMC statement on the same date.  On April 27, 2020, plaintiff, represented by counsel, answered the cross-complaint.  Again through counsel, he filed a first amended complaint on July 28, 2020.  On November 13, 2020, the court set the initial trial date for December 6, 2021, with an FSC on November 29, 2021.  On December 4, 2020, plaintiff substituted himself as counsel.  That is the last document he filed. 

As the final status conference approached, defendants filed a trial brief, witness list, exhibit list, and statement of the case.  In their filings, defendants and cross-complainants stated that plaintiff “has not been responsive to any discovery or correspondence since June 2, 2021.  Following multiple requests from counsel Nazgole Hashemi for Farzaneh to provide information for this list and the [FSC] of November 29, 2021, finally, on November 16, 2021, Farzaneh sent email correspondence advising that he will be asking the Court to continue the FSC and trial date.  To date, however, no ex parte or other request has been filed with the Court, and the Safaees and RLI shall oppose any such request for a continuance as prejudicial and unfair.”

Farzaneh appeared at the November 29, 2021 FSC.  The court noted that up until the hearing, Farzaneh had not requested a continuance and that he ought to have done so.  The court noted that defendant filed some, but not all, of the required FSC materials.  The court also noted that plaintiff had filed nothing.  Notwithstanding that, and because defendant had not filed all of the materials required, the trial was continued to September 26, 2022 with an FSC set for September 19, 2022.  The parties were admonished to review the court’s FSC instructions on the web and to be in compliance with them.  On March 4, 2022, the court, on its own motion, continued the trial to December 19, 2022 and, although it is not reflected in the Minute Order, also moved the FSC to December 5, 2022.

On March 29, 2022, RLI Insurance Company (who had been added in the amended complaint) filed a motion for summary judgment.  Farzaneh did not oppose the motion.  The motion was granted on June 17, 2022.  Judgment was entered thereon on December 16, 2022.

The court is left with this problem.  Farzaneh has done nothing at all in this case since he started representing himself.  He has not opposed motions, he has not responded to calls from opposing counsel to prepare for the final status conference (the one that had been set for 2021), he did not submit any final status conference documents.  The court simply does not believe Farzaneh that this is just a calendaring error.  The court would normally be inclined to dismiss the case.  Farzaneh plainly has no interest in litigating or prosecuting the action.

However, the story does not end there.  Safaee has also not been active.  Although counsel did file some FSC materials in 2021, nothing was filed in 2022 even though the court stated that Safaee’s FSC materials were not sufficient.  And further, although Farzaneh admits he was told of the December 5, 2022 FSC date, the court cannot find a reference to that in any Minute Order, which casts at least some doubt on the fact and does mean that there was no notice given of that date and that looking at the prior orders would not disclose it either.

Given the strong policy preference for resolving cases on their merits, the court does not feel comfortable, under those circumstances, dismissing the case.  The court will therefore, and somewhat reluctantly, give Farzaneh another chance to do what is needed (and Safaee as well).  The court will set the matter for trial.  The discovery and motion cut off dates have come and gone, however.

The court (again) admonishes the parties to follow the court’s rules on final status conference materials and trial.  Failure to comply may well lead to a terminating sanction at this point.  The court also notes that many of the required documents must be jointly submitted.  That means that the parties need to work together on those documents.