Judge: Steven A. Ellis, Case: 20STCV37767, Date: 2023-12-18 Tentative Ruling
Case Number: 20STCV37767 Hearing Date: December 18, 2023 Dept: 29
Tentative
Defendant Marcarelli’s motion to dismiss for
delay in service is DENIED.
Background
This arises from a trip and fall that allegedly
occurred on October 15, 2019.
On October 1,
2020, Plaintiff Minoo Saghian (“Plaintiff”) filed her complaint against Defendants
City of Los Angeles (“City”), County of Los Angeles (“County”),
Kevin M. Loew & Jillian M. Rice Trust, Kein Mathew Loew, Jillian Michelle
Rice-Loew, and Does 1 to 100, asserting causes of action for (1) Premise
Liability/Violation of Government Code and (2) General Negligence/Violation of
Government Code.
On June 14,
2022, County filed an answer to the complaint.
On July 26,
2022, Defendants Kevin Mathew Loew and Jilliam Michelle Rice-Loew Joint Living
Trust (erroneously sued as Kevin M Loew & Jilliam M. Rice Trust), Kevin
Mathew Loew, and Jillian Michelle Rice-Loew (collectively, the “Loew Defendants”)
filed an answer to the complaint. On the
same day, the Loew Defendants filed a cross-complaint against City, County, and
Roes 1 through 50.
On August 8,
2022, City filed an answer to the complaint.
The same day, City filed a cross-complaint against the Loew Defendants,
County, and Moes 1 through 50.
On September 21,
2022, the Court, at the request of Plaintiff, dismissed the claims in the
complaint against County, without prejudice.
On February 21, 2023, the Court, at the request of the Loew Defendants, dismissed
the claims in their cross-complaint against County, without prejudice. On October 25, 2023, the Court, at the request
of City, dismissed the claims in its cross-complaint against County, without
prejudice.
On August 3, 2023, Plaintiff amended her complaint to
name Marcarelli Design Inc. (“Marcarelli”) as Doe 1. According to the proof of service on file
with the Court, Marcarelli was served on September 26, 2023.
On October 26, 2023, Marcarelli filed this motion to dismiss
for delay of prosecution.
Legal
Standard
Under Cal. Code Civ. Proc. § 583.420 “(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.
(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.
(b) The times provided in subdivision (a) shall be computed
in the manner provided for computation of the comparable times under Articles 2
(commencing with Section 583.210) and 3 (commencing with Section 583.310).”
In considering a motion for discretionary dismissal, the
court is guided by the factors outlined in California Rule of Court 3.1342, as
established in Corrinet v. Bardy, 35 Cal.App.5th 69, 71 (Cal. Ct. App. 2019.)
Rule 3.1342 states that a proper determination of a motion to dismiss for delay
in prosecution must consider: (1) The court's case file, declarations, and
supporting data from the parties, as well as the availability of essential
parties for service of process; (2) Diligence in seeking to effect service of
process; (3) Engagement in settlement negotiations or discussions; (4)
Diligence in pursuing discovery or other pretrial proceedings, including
extraordinary relief; (5) The nature and complexity of the case; (6) Applicable
laws and related litigation; (7) Extensions of time or delays attributable to
either party; (8) Court calendar conditions and earlier trial date
availability; (9) Whether justice is best served by dismissal or trial; or (10)
Any other relevant fact or circumstance.
Evidentiary
Objections
The Court OVERRULES
Plaintiff’s three evidentiary objections to the Declaration of Justin Bubion,
Esq.
Discussion
Plaintiff filed this action on October 1, 2020. Plaintiff did not amend her complaint to name
Marcarelli as Doe 1 until August 2023, and did not serve Marcarelli until September
26, 2023, more than two years (and almost three years) after the complaint was
filed. Based on that delay in service,
Marcarelli now moves to dismiss.
Where, as here, more than two years passed from filing to
service, Plaintiff must show that she acted with diligence. Here, Plaintiff apparently
had some awareness by no later than September 2022 that Marcarelli performed
some work on the premises prior to the accident. (Azimi Decl., ¶¶ 5-6.) As late as January and
February 2023, however, both the Loew Defendants and City stated unequivocally in
written discovery responses that no other party controlled or maintained the
premises at the time of the accident. (Id., ¶¶ 7-11.) It was apparently later
in 2023 that Plaintiff became aware of additional facts that allowed her to amend
her complaint to name Marcarelli as Doe 1.
(Id., ¶¶ 12-13.) Having
considered all of the arguments of both sides and the evidence in the record,
the Court finds that under all of the circumstances, including the discovery response
of the Loew Defendants and City, Plaintiff has made an adequate showing of
diligence in this matter.
Accordingly, Marcarelli’s motion to dismiss for delay in
service is DENIED.
Two additional points merit further discussion. First, Marcarelli claims that it may be
unfairly prejudiced by its late addition to the case, particularly in light of
the trial date (now April 11, 2024). If
Marcarelli needs additional time to conduct discovery and/or otherwise to prepare
for trial, Marcarelli may seek a further continuance of the trial date (either
by stipulation or by a motion on a showing of good cause) or other appropriate
relief.
Second, Marcarelli appears to argue that its identity was
known to Plaintiff as of the time of filing and that it was therefore not a
true “Doe.” That may or may not be the
case. For purposes of this motion, and
on this record, Marcarelli has not made such a showing, but nothing in this
ruling forecloses Marcarelli from arguing, based on a more complete factual
showing (either at or before trial) that it was not a true “Doe” and that
therefore the claims against it are barred by the applicable statutes of
limitations.
Conclusion
The Court DENIES
Marcarelli’s motion to dismiss for delay in service.
Moving Party is
ORDERED to give notice.