Judge Steven A. Ellis, Case Number: 21STCV20658, Date: 2023-10-06 Tentative Ruling

Judge: Steven A. Ellis, Case: 21STCV20658, Date: 2023-10-06 Tentative Ruling

Case Number: 21STCV20658 Hearing Date: January 23, 2024 Dept: 29

Motion to Dismiss for Failure to Prosecute filed by Defendant Shahab Ebrahimian, D.D.S.

Tentative

The motion is CONTINUED to January 24, 2024.

Background

On June 2, 2021, Plaintiff Amal Gabriel (“Plaintiff”) filed a complaint against Sean Ebrahamian, D.D.S., Implants 4 Life, and Does 1 through 100 for personal injury and medical malpractice.

On November 2, 2022, Plaintiff’s counsel was relieved as counsel.

On December 18, 2023, Defendant Shahab Ebrahimian (erroneously sued as Sean Ebrahamian, “Defendant”) filed this motion to dismiss complaint due to Plaintiff’s failure to prosecute. No opposition has been filed.

Trial in this matter is set for January 24, 2024, at 8:30 am.

Legal Standard

Under Cal. Code Civ. Proc. § 583.410, the court may, in its discretion, dismiss an action for delay in prosecution if it deems such action appropriate under the circumstances. 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.

“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 of Civil Procedure section 583.420(a).)

Discussion

Defendant contends that the case was filed on June 2, 2021, and Defendant answers on August 17, 2021. (Motion, 5:3.) Plaintiff did not appear for her deposition despite it being noticed several times. (Brooks Decl., ¶ 2.) Defendant contends that after Plaintiff’s counsel was relieved, his counsel reached out “to move the case forward or secure a dismissal” but never received a response. (Id., ¶ 4.) Defendant served requests for admission, which he did not receive a response to, and were deemed true by this Court by motion on October 6, 2023. (Id., ¶ 5.) Defendant served a demand for exchange of expert witness information, and designated its witness on November 6, and December 5, 2023, respectively; Plaintiff has not served either. (Id., ¶ 6.)

Defendant claims to be prejudiced by Plaintiff's failure to prosecute, and that they cannot even evaluate the case for settlement due to the lack of Plaintiff deposition. (Id., ¶ 7.)

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.

With regard to these factors, Defendant makes the following arguments:

(3) Engagement in settlement negotiations or discussions;

Due to Plaintiff’s lack of communication, Defendant contends settlement has been difficult because he cannot evaluate the case and Plaintiff’s claims.

(4) Diligence in pursuing discovery or other pretrial proceedings, including extraordinary relief;

The Court finds that Defendant has shown due diligence in continuing with the discovery process by noticing Plaintiff’s deposition, serving request for admission, and continuing with expert discovery. Defendant contends that Plaintiff has failed to cooperate to provide Defendant with evidence to be sed against him. (Motion, 5:18-20.) Defendant contends he has been diligent in discovery and have not delayed the case. (Id., 5:22-23.)

(6) Applicable laws and related litigation;

Defendant contends that he is “unaware of any other pending litigation under a common set of facts or determinative of the legal or factual issues in this case.” (Id., 5:23-24.)

(7) Extensions of time or delays attributable to either party;

Defendant has not appeared to have delayed this case.

(9) Whether justice is best served by dismissal or trial;

Due to the lack of complete discovery, as alleged by Defendant, the Court finds that justice would likely be best served by dismissal without prejudice.

After considering all of the evidence and argument, the Court, on its own motion, CONTINUES the hearing on this motion to January 24, 2024.

If Plaintiff fails to appear at the trial, also set for January 24, 2024, the case will be subject to dismissal pursuant to Code of Civil Procedure section 581, subdivision (b)(3) or (b)(5).

Conclusion

The Court, on its own motion, CONTINUES the hearing on Defendant’s motion to dismiss to January 24, 2024, at 1:30 pm, in Department 29 of the Spring Street Courthouse.

Defendant is ordered to give notice.