Judge: Steven A. Ellis, Case: 22STCV00628, Date: 2025-01-09 Tentative Ruling
Case Number: 22STCV00628 Hearing Date: January 9, 2025 Dept: 29
Ross
v. Wyndham Hotels & Resorts, Inc.
22STCV00628
Defendants’ Motion to Dismiss for Failure to Prosecute
Tentative
The motion is denied as moot, as the
moving parties have been dismissed.
Background
On January 6, 2022, Ashanti Marie
Ross (“Plaintiff”) filed a complaint against Wyndham Hotels & Resorts, Inc.
(“Wyndham”), Travel & Leisure Co. (“Travel & Leisure”), Days Inn by
Wyndham Whittier Los Angeles (“Days Inn”), Tina Bera, and Does 1 through 20 for
(1) battery, (2) negligence, (3) intentional infliction of emotional distress,
(4) fraudulent concealment, (5) private nuisance, (6) public nuisance, and (7)
breach of contract, all arising out of Plaintiff’s allegation that she was bitten
by bed bugs during a stay from January 9 to 13, 2020, at the hotel located on Telegraph
Road in Whittier.
On August 29, 2023, Wyndham and Travel
& Leisure filed an answer.
On September 18, 2023, the Court,
based on an oral request of Plaintiff’s counsel, dismissed Days Inn and Tina Bera,
without prejudice.
On July 17, 2024, Plaintiff amended
her complaint to name Bera Family Trust as Doe 1.
On August 30, 2024, the Court, based on
the written request of Plaintiff, dismissed Wyndham and Travel & Leisure without
prejudice.
On September 23, 2024, Plaintiff
amended her complaint to name Rimal and Tuhina Bera Family Trust as Doe 2 and to
name Tuhina Bera as Doe 3.
On November 1, 2024, Plaintiff filed
a proof of service indicating that Days Inn was served by substituted service
on October 30, 2024.
On December 6, 2024, Rimal and Tuhina
Bera Family Trust filed an answer.
On December 6, 2024, Defendants Days
Inn and Tina Bera (“Defendants”) filed this motion to
dismiss for failure to serve the complaint within two years.
Plaintiff
did not file a timely opposition. Plaintiff’s counsel filed a declaration (with
an incomplete proof of service) on January 3, 2025.
Legal Standard
Code of
Civil Procedure section 583.410, subdivision (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.”¿ (Code Civ. Proc., §
583.410, subd. (a).) Subdivision (b) provides, ““Dismissal shall be pursuant to
the procedure and in accordance with the criteria prescribed by rules adopted
by the Judicial Council.” (Id., subd. (b).)¿
Code of
Civil Procedure section 583.420, subdivision (a), states in 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:¿ ¿
(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.”¿ ¿
Moreover,
California Rules of Court, rule 3.1340(a) provide that 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 ruling on
a motion to dismiss under section 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).)¿¿¿
Code of Civil Procedure section
583.130 provides courts with further guidance in ruling on a motion to dismiss:
“It 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.”
¿ “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.” (Van
Keulen v. Cathay Pacific Airways, Ltd. (2008) 162 Cal.App.4th 122, 131.)¿ The
policy of favoring trial on the merits, however, “only comes into play when a
plaintiff makes a showing of some excusable delay.”¿ (Ibid.)¿¿
Discussion
Here, Defendants request that the Court
dismiss them from this lawsuit based on Plaintiff’s failure to serve them for
more than two years after the case was filed.
Defendants, however, have already been
dismissed from the lawsuit. On September 18, 2023, the Court dismissed the Defendants
at the request of Plaintiff.
It appears that Plaintiff may have served
Defendants in October 2024. (Days Decl., ¶¶ 12-13.) But that service is improper
and of no effect, as the Defendants were dismissed from the case more than one
year earlier. Plaintiffs have made no attempt to vacate the dismissal or
otherwise bring Defendants back into the suit.
Accordingly, the motion is denied as moot. Defendants
have been dismissed from the lawsuit and remain dismissed from the lawsuit.
Conclusion
The Court DENIES AS MOOT Defendants’ motion to
dismiss.
Moving Party is ordered to give notice.