Judge: Theresa M. Traber, Case: 19STCV08066, Date: 2024-10-08 Tentative Ruling

Case Number: 19STCV08066    Hearing Date: October 8, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     October 8, 2024                     TRIAL DATE: NOT SET

CASE:                         Albert Luquin, individually and as Trustee of the Albert Luquin Trust dated January 23, 2019 v. Jorge Luquin

CASE NO.:                 19STCV08066           

MOTION TO DISMISS FOR FAILURE TO BRING TO TRIAL

MOVING PARTY:               Defendant Jorge Luquin

RESPONDING PARTY(S): No response on eCourt as of 10/03/24

CASE HISTORY:

·         03/07/19: Complaint filed.

·         08/21/19: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for fraud and breach of contract. Plaintiff alleges that the parties entered into an agreement to sell a parcel of real property based on Defendant’s representation that Plaintiff would keep half of the proceeds, less what funds were required for Defendant to conduct repairs on Plaintiff’s house. Plaintiff alleges that Defendant did not follow through on his promises.

Defendant moves to dismiss this action for failure to bring to trial.

TENTATIVE RULING:

Defendant moves to dismiss this action for failure to bring to trial.

Code of Civil Procedure section 583.310 requires any action to be brought to trial within five years of the date of its commencement. (Code Civ. Proc. § 583.310.) This period runs from the date of filing of the original complaint and is not affected by amendment. (See Davalos v. County of Los Angeles (1983) 142 Cal.App.3d 57, 63.) Dismissal of an action which is not brought within the five-year period is mandatory, either on a party’s motion or sua sponte, unless the Plaintiff can establish an extension, excuse, or exception expressly provided by statute. (Code Civ. Proc. § 583.360.)

Counsel for Defendant states that Plaintiff Albert Luquin passed away in or around January 2021, and, since that time, no successor in interest has been substituted in. (Declaration of John W. Branch ISO Mot. ¶¶ 3-4.) Nor has there been any opposition to this motion by any putative successor in interest. This action passed the statutory five-year deadline on March 7, 2024. Moreover, to the extent that the six-month extension under Emergency Rule 10(a) is applicable, that extension expired on September 7, 2024, a week before this motion was served and filed. (See Cal. Rules of Court Appendix I Emergency Rule 10(a).) Dismissal is therefore mandatory.

Accordingly, Defendant’s Motion to Dismiss for Failure to Bring to Trial is GRANTED.

Dismissal is entered as to the Defendant this date with prejudice.

Moving Party to give notice.

IT IS SO ORDERED.

Dated:  October 8, 2024                                  ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.