Judge: Michael E. Whitaker, Case: 20STCV11907, Date: 2022-08-08 Tentative Ruling

Case Number: 20STCV11907    Hearing Date: August 8, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff David Mendez sued defendants David Lingberg and Teresa E. Lingberg (collectively, “Defendants”) based on a motor vehicle collision.  Defendants move to dismiss Plaintiff’s complaint for failure to serve Defendants within 2 years after the action was commenced against them.  Plaintiff has not filed an opposition to the motion.

ANALYSIS

Under Code of Civil Procedure section 583.420, the Court may dismiss an action for delay in prosecution when “[s]ervice is not made within two years after the action is commenced against a defendant.”  (Code Civ. Proc., §§ 583.410; 583.420(a)(1).)  Dismissal is warranted where the plaintiff has failed to prosecute the action with “reasonable diligence.”  (Dunsmuir Masonic Temple v. Superior Court (1970) 12 Cal.App.3d 17, 23.)  But, in California, “the policy favoring trial or other disposition of an action on the merits [is] generally preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action[.]”  (Code Civ. Proc., § 583.130; see also Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1399 [there is a “strong public policy in favor of deciding cases on the merits”].) 

Here, Plaintiff filed the complaint on March 25, 2020.  Thus, as of the filing date of the motion, it has been 2 years, 2 months, and 23 days since Plaintiff commenced the action against Defendants.  According to counsel for Defendants, Robert J. Gardner (“Gardner”), Plaintiff filed declarations of diligence on September 7, 2021 – approximately 18 months after filing the complaint - concerning Plaintiff’s initial attempts to serve Defendants.  (Declaration of Robert J. Gardner, ¶ 4, Exhibit B.)  Gardner states that Plaintiff perfected service on Defendants on June 4, 2022, by electronic transmission per the parties’ agreement.  (Declaration of Robert J. Gardner, ¶ 5, Exhibit C.) 

Although Plaintiff has not opposed the motion, the Court declines to exercise its discretion in dismissing the action as to Defendants in light of Plaintiff perfecting service of the summon and complaint on Defendants per the parties’ agreement on June 4, 2022.  It seems disingenuous on the part of Defendants to agree to accept service of the summons and complaint after two years since the commencement of the action, and to then seek to dismiss the action as to them because the summons and complaint were served after the two-year mark. 

CONCLUSION AND ORDER

Therefore, the Court denies Defendants’ motion to dismiss.  The Clerk of the Court shall provide notice of the Court’s ruling.