SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

1. Background 

On February 28, 2019, Plaintiff Shahnaz Fazelina (“Plaintiff”) filed this action against Defendant Michael Vincent Davis (“Defendant”) for damages arising from a motor vehicle incident which occurred on March 3, 2017.  Defendant filed an Answer to Plaintiff’s Complaint on February 28, 2022. 

At this time, Defendant moves to dismiss Plaintiff’s Complaint for delay in service of the summons and complaint and failure to prosecute.  Plaintiff opposes the motion, and Defendant filed a response.    

 

2. Motion to Dismiss for Failure to Prosecute 

A. Service of Summons and Complaint 

CCP § 583.210 provides:¿ 

(a) The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.¿¿ 

(b) Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant. 

Here, Defendant concedes that Plaintiff served the summons and complaints within the three years from the commencement of the action. Defendant himself states that Plaintiff served the summons and complaint two weeks before the 3-year deadline. Defendant provides no supporting authority that meeting the 3-year deadline close to the cut-off date is a contributing factor that “defeats the validity of the service.”  

 

B. Delay In Prosecution 

CCP § 583.410(a) states: “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.”   

 

CCP § 583.420 provides in pertinent part: 

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

 

… 

 

(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. 

 

Moreover, California Rules of Court, Rule 3.1340(a) provides, the court on its own motion or on motion of the defendant may dismiss an action under Code of Civil Procedure sections 583.410-583.430 for delay in prosecution if the action has not been brought to trial or conditionally settled within two years after the action was commenced against the defendant. 

In addition, in ruling on a motion to dismiss under CCP § 583.410, 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.  

(Cal. Rules of Court, Rule 3.1342(e).)   

 

“ ‘The competing considerations to be evaluated are the policies of discouraging stale claims and compelling reasonable diligence balanced against the strong public policy which seeks to dispose of litigation on the merits rather than on procedural grounds.’ [Citation.] ‘However, it is now well established that the policy [of preferring to dispose litigation on the merits] only comes into play when a plaintiff makes a showing of some excusable delay.’ [Citation.]”  (Van Keulen v. Cathay Pacific Airways, Ltd. (2008) 162 Cal.App.4th 122, 131.)   

The Court does not find dismissal warranted in this matter.  Defendant does not dispute that Plaintiff served the summons and complaint on Defendant in this action. Defendant contends that no discovery occurred and that Plaintiff will not respond to written discovery. In opposition, Plaintiff contends that Plaintiff attempted service of process upon Defendant multiple times throughout the COVID-10 pandemic, and that there was a reasonable delay due to Defendant’s conduct in evading service. Plaintiff contends that her process server attempted to serve Defendant between January 12, 2021 through February 11, 2022, and that it took approximately twenty-two attempts before service was successful. Throughout the attempt to serve Plaintiff at his residence in Santa Monica, a relative of Defendant informed the process server that Defendant moved to the State of Virginia. Finally, the process server served Defendant’s brother at Defendant’s home address in Santa Monica. Furthermore, Plaintiff’s counsel declares difficulties in contacting Plaintiff, who is located in Iran. Plaintiff’s counsel contends that the November 13, 2022 deposition date for Plaintiff did not move forward because Plaintiff was unable to remotely log into the video conference due to Iran’s internet restrictions. In reply, Defendant contends that it was seventeen unsuccessful service attempts, not twenty-two. Defendant also contends that the process server’s difficulty in being unable to access Defendant’s gated apartment complex 65% of the time is not evidence of evading service.  

As Defendant argues, this is not a complex case – the allegations provide a run-of-the-mill automobile collision incident. The Court notes that Plaintiff indeed did not attempt to serve Defendant until nearly two years after filing the lawsuit. However, the Court also notes the difficulties in serving Defendant in terms of delays, but the Court will not go so far as to speculate and attribute fault. Defendant avers that he served initial written discovery to Plaintiff on April 26, 2022, in which Defendant contend only non-substantive responses were provided on June 29, 2022 after Defendant did not respond to Plaintiff’s request for an additional extension. Defendant attempted to meet and confer with Plaintiff’s counsel, and scheduled an informal discovery conference (“IDC”) for October 17, 2022. Due to Plaintiff’s counsel supposed conflict with the October 17, 2022 IDC date, Defendant continued the IDC to January 31, 2023.  

Although in contention and still at the early stages, discovery is in progress. On January 31, 2023, counsel for both parties appeared at the IDC, in which Plaintiff agreed to provide substantive verified responses by February 28, 2023. (Min. Order, Feb. 28, 2023.) On March 8, 2023, the Court continued Defendant’s motions to compel further responses to allow the parties to file a joint statement of items in dispute. (Min. Order, March 8, 2023.) On May 31, 2023, the parties failed to file a joint statement. (Min. Order, May 31, 2023.) The Court found it unclear whether the parties attempted to meet and confer in good faith, and the Court ordered the parties to participate in an additional IDC, which was scheduled for July 18, 2023. (Ibid.) The IDC was taken off calendar, and the Court assumes that the discovery issues have been resolved. While the discovery process has not been without delay in this case, the Court appreciates the effort by both parties to move forward and resolve the issues.  

While there is a showing of some delay in service of the summons and complaint and delay in effectuating discovery, Defendant, at this time, does not identify any prejudice it has directly suffered as a result of the delay. The Court finds that the interests of justice are not best served by dismissal under these circumstances. Furthermore, the Court declines to award any sanctions associated with this motion. 

Based on the foregoing, the motion to dismiss is denied.  Nonetheless, given that the five-year date is fast approaching, Plaintiff is put on notice that failure to prosecute this action diligently puts her case at risk for dismissal.  

 

Defendant is ordered to give notice.   

 

PLEASE TAKE NOTICE: 

Dated this 20th day of July 2023