Judge: Serena R. Murillo, Case: 21STCV27469, Date: 2022-12-08 Tentative Ruling

Case Number: 21STCV27469    Hearing Date: December 8, 2022    Dept: 29

TENTATIVE

Defendant City of Cudahy’s motion to dismiss is DENIED.

Legal Standard

CCP § 581(b)(4) provides that a court may dismiss an action without prejudice when dismissal is made pursuant to Section 583.110 et seq. Pursuant to CCP § 583.130, “[i]t is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition. Except as otherwise provided by statute or by rule of court adopted pursuant to statute, the policy favoring the right of parties to make stipulations in their own interests and the policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter.” CCP § 583.130 does not, however, limit the Court’s authority to dismiss an action or impose other sanctions. (Code Civ. Proc., § 583.150.) 

CCP § 583.410 provides that the Court may in its discretion dismiss an action for delay in prosecution. The court may not dismiss an action for delay in prosecution unless one of the following conditions specified in CCP § 583.420 has occurred: (1) Service is not made within two years after the action is commenced; (2) the action is not brought to trial within three years of commencement or within two years of commencement if Section 583.410 applies; (3) a new trial is granted and the action is not again brought to trial within specified times.  

On ruling on such a motion, the Court must consider the relevant factors stated in CRC Rule 3.1342(e). These factors include: 

(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. 

The court must be guided by the policies set forth in Code of Civil Procedure § 583.130. (Cal. Rules of Court, Rule 3.1342, subd. (e).) 

Discussion

Defendant City contends that Plaintiff failed to proceed with reasonable diligence in the prosecution of the instant action, arguing that Plaintiff did not serve the complaint for 14 months.

On review of the moving papers, the Court finds that Defendant has not satisfied dismissal grounds pursuant to CCP § 581(b)(4), which requires that either: service be made within two years of commencement of the action, or that the action be brought to trial within three years of commencement or within two years of commencement in special circumstances. Plaintiff filed the complaint on July 27, 2021. Thus, the two-year mark is on July 27, 2023. Defendant has been served. Thus, as Plaintiff served Defendant within two years, and two years have not yet passed since the commencement of this action, the motion is premature.

Moreover, the factors under Rule 3.1342(e) do not weigh in favor of dismissal as no party has pursued discovery, and a continuance has been offered. Moreover, even if the parties were ready for trial, the conditions of the Court’s calendar would likely delay trial due to backlogs. Lastly, the case does not appear to be complex, as it is a Personal Injury matter. 

While Defendant argues that the Court has discretion to dismiss the case even where the time provided under the various mandatory dismissal statutes has not yet expired, the policy favoring trial on the merits is favored over the policy requiring dismissal for delay in prosecution. (Code Civ. Proc., § 583.130.)

Further, Defendant argues it has been prejudiced by the delay where trial is January 24, 2023, and last date to serve discovery to Plaintiff is November 23, 2022, and Plaintiff’s delay effectively have the City only 2 months to conduct discovery, obtain records, file motion for summary judgment, take fact and expert depositions within 2 months. However, Defendant can simply move to continue trial. Defendant argues Plaintiff’s delay is specifically intended to disadvantage the defendant and minimize any opportunity to conduct discovery, but provides no evidence for such a proposition.

Lastly, Defendant argues that Plaintiff has not provided good cause for the delay. However, a plaintiff has the burden of showing excusable delay once a complaint is not served within the two-year period. (Ladd v. Dart Equipment Corp. (1991) 230 Cal.App.3d 1088, 1099-110.) As the complaint was served within two years, Plaintiff does not have the burden to show excusable delay.

Conclusion

Accordingly, Defendant’s motion to dismiss for lack of prosecution is DENIED.