Judge: Michael E. Whitaker, Case: BC718386, Date: 2023-02-09 Tentative Ruling

Case Number: BC718386    Hearing Date: February 9, 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

            Defendant City of Inglewood (“City”) moves the Court for an order dismissing Plaintiff Noemi Ramirez’s (“Plaintiff”) action, without prejudice, for failure to prosecute.  No opposition has been filed.  

ANALYSIS

“The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.”  (Code Civ. Proc., § 583.410, subd. (a).)  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.)

“The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred:

(1) Service is not made within two years after the action is commenced against the defendant.

(2) The action is not brought to trial within the following times:

(A) Three years after the action is commenced against the defendant unless otherwise prescribed by rule under subparagraph (B).

(B) Two years after the action is commenced against the defendant if the Judicial Council by rule adopted pursuant to Section 583.410 so prescribes for the court because of the condition of the court calendar or for other reasons affecting the conduct of litigation or the administration of justice.

(3) A new trial is granted and the action is not again brought to trial within the following times:

(A) If a trial is commenced but no judgment is entered because of a mistrial or because a jury is unable to reach a decision, within two years after the order of the court declaring the mistrial or the disagreement of the jury is entered.

(B) If after judgment a new trial is granted and no appeal is taken, within two years after the order granting the new trial is entered.

(C) If on appeal an order granting a new trial is affirmed or a judgment is reversed and the action remanded for a new trial, within two years after the remittitur is filed by the clerk of the trial court.”

(Code Civ. Proc., § 583.420, subd. (a).) 

“Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.”  (Code Civ. Proc., § 583.410, subd. (b).) 

California Rules of Court, rule 3.1342(e) provides: “In ruling on the motion, the court must consider all matters relevant to a proper determination of the motion, including: ¶ (1) The court’s file in the case and the declarations and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process; ¶ (2) The diligence in seeking to effect service of process; ¶ (3) The extent to which the parties engaged in any settlement negotiations or discussions; ¶ (4) The diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party; ¶ (5) The nature and complexity of the case; ¶ (6) The law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case; ¶ (7) The nature of any extensions of time or other delay attributable to either party; ¶ (8) The condition of the court’s calendar and the availability of an earlier trial date if the matter was ready for trial; ¶ (9) Whether the interests of justice are best served by dismissal or trial of the case; and ¶ (10) Any other fact or circumstance relevant to a fair determination of the issue.”

Here, the City’s counsel attests to the following facts.  Since this matter was filed on August 16, 2018, there have been a total of five trial continuances in this matter.  (Motion, declaration of Patricia K. Gandy (“Gandy Decl.”), ¶ 4.)  Despite those continuances and during the pendency of the action which was filed on August 16, 2018, Plaintiff has conducted very little written discovery, and taken no depositions.  (Gandy Decl., ¶¶ 4-7.) 

On or about April 8, 2022, the City demanded an Independent Medical Exam (“IME”) to be conducted in July 13, 2022.  (Gandy Decl., ¶ 8.)  The City did not receive any response or objection to the IME, but on or about July 14, 2022, Plaintiff’s counsel informed the defendant that Plaintiff’s counsel would be unavailable on that date.  (Gandy Decl., ¶¶ 8-9.)  The City has attempted to re-schedule the IME and provided Plaintiff’s counsel with multiple dates options as to the same, but Plaintiff has ignored those requests.  (Gandy Decl., ¶ 10.)  Therefore, the City unilaterally noticed an IME for January 17, 2023, but on or about December 28, 2022, Plaintiff’s counsel’s assistant informed the City that Plaintiff will not be attending the IME, but agreed to serving an objection and informed counsel that she would have to work with Plaintiff’s counsel to come up with an alternative date.  (Gandy Decl., ¶ 12.) 

As of the date of the filing of this motion, defense counsel has yet to hear from counsel, despite contacting counsel on multiple occasions in writing and telephone.  (Gandy Decl., ¶¶ 12, 13.)  The City argues it has attempted in good faith to litigate this matter and conduct discovery, but with trial fast approaching and Plaintiff’s and counsel’s unwillingness to participate, the City will be greatly prejudiced if the matter is not dismissed.  (Gandy Decl., ¶ 14) 

On February 2, 2023, the City filed a Notice of Non-Receipt of Plaintiff’s Opposition, updating the Court that Plaintiff was to file and serve his opposition by January 27, 2023, but the City has not received any opposition.  The Court notes that no opposition has been filed as of February 7, 2023.  (Evid. Code, § 452, subd. (d) [providing that a court may take judicial notice of court records].) 

The Court finds that the Plaintiff has not completely abandoned this case.  Granted, the Complaint alleges that Plaintiff “suffered and continues to suffer pain and disability,” as a result of tripping and fall on a damaged sidewalk.  (See Attachments to Complaint.)  Therefore, it would be reasonable for the City to seek an IME to evaluate the extent of Plaintiff’s injuries in order to prepare for trial.  By failing to submit to an IME or at least respond to defense counsel’s correspondence, Plaintiff is undoubtedly prejudicing the City because it is unable to fully prepare for trial.  However, after the City filed its motion on January 9, 2023, it filed what appears to be joint witness lists, jury instructions, and exhibit lists (albeit without Plaintiff’s input and approval by counsel for Plaintiff). 

In addition, the Court initially held the Final Status Conference on January 27, 2023, before continuing it to its current date on March 6, 2023.  The Court notes that Plaintiff’s counsel appeared at that hearing.  There was nothing in the Minute Order for that date, January 27, 2023, suggesting that discovery was still an issue.  In fact, the Court announced that the discovery and motion cut off dates were closed, except for pre-trial motions.

CONCLUSION AND ORDER

Accordingly, the Court exercises its discretion and denies City’s Motion to Dismiss without prejudice.

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