Judge: Richard S. Whitney, Case: 37-2021-00050961-CU-FR-CTL, Date: 2024-06-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 05, 2024

06/07/2024  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Fraud Motion Hearing (Civil) 37-2021-00050961-CU-FR-CTL ONCOGENERIX USA INC VS ALPHA CAPITAL LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: ONCOGENERIXUSA, INC., IGOR IVANOV, AND ONCOGENERIX INVEST, INC.'S MOTION TO DISMISS NEWLY ADDED CROSS-DEFENDANTS FOR FAILURE TO PROSECUTE PER RULES OF COURT 3.110 is DENIED.

Plaintiffs/Cross-Defendants ONCOGENERIX USA, INC. ('ONCOGENERIX') and IGOR IVANOV ('Ivanov') (collectively 'Plaintiffs') seek to dismiss newly added cross-defendants that Defendant and Cross-Complainant Alpha Capital, LLC ('Alpha Capital') added based on the assertion they have not been served. The Court finds the motion is moot as to two of the newly added cross-defendants as Alpha Capital recently served them. While Plaintiffs assert service was improper and not made as to the operative fourth amended cross-complaint, Plaintiffs do not deny Alpha Capital must be permitted more time to serve the fourth amended cross-complaint. Further, Alpha Capital is currently attempting to serve the third newly added cross-defendant.

Plaintiffs rely upon California Rules of Court, Rule 3.110, which provides, in part, that '[i]f the cross-complaint adds new parties, the cross-complaint must be served on all parties and proofs of service on the new parties must be filed within 30 days of the filing of the cross-complaint.' However, California Rules of Court, Rule 3.110(f) provides the potential remedy for failure to comply – '[i]f a party fails to serve and file pleadings as required under this rule, and has not obtained an order extending time to serve its pleadings, the court may issue an order to show cause why sanctions shall not be imposed.' The Court declines to set an OSC regarding sanctions.

Plaintiffs also rely upon CCP section 583.410, which provides, in part, that '[t]he 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(a).) However, Plaintiffs fail to acknowledge: (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: (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.

(Code Civ. Proc., § 583.420(a).) Two years have not elapsed. Therefore, the Court cannot dismiss the action under CCP section 583.410. The motion is denied.

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