Judge: Michael E. Whitaker, Case: BC670665, Date: 2023-02-28 Tentative Ruling

Case Number: BC670665    Hearing Date: February 28, 2023    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 Jakika Bacic (Plaintiff) sued Defendant Silverlake Medical Center (Defendant), asserting general negligence and premises liability claims against Defendant.  Defendant moves to dismiss Plaintiff’s action against Defendant for Plaintiff’s failure to prosecute this case for two years.

ANALYSIS

Under Code of Civil Procedure section 583.420, the court may dismiss an action for delay in prosecution if the plaintiff does not bring the action to trial within two years.  (Code Civ. Proc., §§ 583.410; 583.420(a)(2)(B).)  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.) 

Here, Plaintiff filed the complaint on August 2, 2017.  Thus, as of the filing date of the motion, it has been about 5 and a half years since Plaintiffs commenced the action against Defendant.  On November 5, 2018, Defendant’s parent company filed for bankruptcy and on November 14, 2018 counsel for Defendant filed a Notice of Stay of Proceedings.  (Declaration of Patrick J. Kearns, ¶ 7.)  The Bankruptcy Court set a deadline of May 31, 2019 for the filing of a claim against Silverlake Medical Center and Plaintiff never filed a “proof of claim” or any type of filing in the Bankruptcy proceedings.  (Declaration of Patrick J. Kearns, ¶ 8.)  On December 16, 2019, the Court granted the motion to be relieved as counsel by former counsel for Plaintiff, Alexander J. Petale (Petale).  (See December 16, 2019 Minute Order.)  Petale served notice of the Court’s order on Plaintiffs by mail on March 13, 2021.  (See March 15 2021 Declaration Re: Service of Order Relieving Counsel.)  Plaintiff thus became a self-represented litigant as of March 13, 2021. 

Defendant advances the declaration of counsel for Defendant, Patrick J. Kearns (Kearns).  Kearns states that Plaintiff has been inactive in this case since May 24, 2018.  (Declaration of Patrick J. Kearns.)  Kearns avers Plaintiff has failed to appear at five consecutive status conferences and Orders to Show Cause in 2022 alone.  (Declaration of Patrick J. Kearns, ¶ 20.)  Kearns thus contends Plaintiff has failed to prosecute the action with reasonable diligence.  The Court agrees.

In California, “the policy favoring trial or other disposition of an action on the merits are 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.)  Under these circumstances, and in consideration of the strong public policy favoring adjudication on the merits, the Court finds Plaintiff has not been reasonably diligent in prosecuting the action, and exercises its discretion to dismiss Plaintiff’s complaint. 

Notwithstanding, on January 30, 2023, the Court continued the hearing to allow Counsel for Defendant to provide notice to Plaintiff of the motion at two addresses of record (1440 Olive View Drive, Sylmar, CA 91342 and 8835 Vans Street, Paramount, CA 90723).  As of the continued hearing date, Defendant’s Counsel has failed to file with the Court proofs of service establishing service of the motion on the two addresses of record as ordered by the Court.  (See January30, 2023 Minute Order.)

CONCLUSION AND ORDER

 Based on Defendant’s failure to comply with the Court’s January 30, 2023 order, the Court denies the motion without prejudice.

Defendant shall provide notice of the Court’s ruling and file proof of service of such.