Judge Thomas D. Long, Case Number: 20STCV37321, Date: 2024-01-18 Tentative Ruling

On September 30, 2020, Plaintiff Mirriam Pantig (“Plaintiff”), as an “aggrieved employee,” filed this action against Defendant VXI Global Solutions, LLC, (“Defendant”) asserting a single cause of action for civil penalties under the Private Attorneys General Act (“PAGA”) due to the Defendant’s violations of the Labor Code.

On April 6, 2023, the Court granted Defendant’s motion to compel arbitration. According to Defendant, Plaintiff has taken no other steps at this time, and Plaintiff’s counsel has told this Court that he is unaware of Plaintiff’s whereabouts.

Consequently, on December 1, 2023, Defendant filed the instant motion to dismiss for failure to prosecute. The motion is brought on the grounds that this action has not been brought to trial or conditionally settled within two years after the action was commenced against Defendant.

Defendant requests the Court for an order dismissing Plaintiff’s action for unreasonable and unjustified delay in prosecution. Defendant seeks only the dismissal of this action at law in this Court.

(a) 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.

(b) Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.

(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.

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. . . ."

Cal. Rules of Court, Rule 3.1340(a), states, “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.”

“The court may grant or deny the motion or, where the facts warrant, the court may continue or defer its ruling on the matter pending performance by either party of any conditions relating to trial or dismissal of the case that may be required by the court to effectuate substantial justice.” (Cal. Rules of Court, Rule 3.1340(f).) Relevant matters that must be considered on such a motion are:

(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;

(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;

(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.

Here, this case meets the two-year time requirement pursuant to section 583.420 and Rule 3.1340 because this case has been pending for a total of 760 days (514 days between September 30, 2020 and February 25, 2022 plus 246 days between August 4, 2022 and April 6, 2023). (Declaration of Laura Reathaford (“Reathaford Dec.”), ¶¶ 2, 3, 4, 7.) As such, the action is more than two years old and has not been brought to trial or conditionally settled in that time.

Additionally, there is a showing that Plaintiff has abandoned the case because, despite the Court’s order compelling arbitration on April 6, 2023, Plaintiff’s counsel told this Court on October 6, 2023 that he is unaware of Plaintiff’s whereabouts and thus unable to communicate with her. (Reathaford Decl., ¶ 8.) Consequently, Plaintiff’s counsel has not commenced arbitration proceedings. (Id.) Also, Plaintiff did not file an opposition to the instant motion, and Defendant filed notice of non-opposition, which further shows the likelihood of abandonment.

Lastly, Defendant seeks only the dismissal of this action at law in this Court. The Court may not dismiss an arbitration proceeding or bar a potential future arbitration proceeding because “contractual arbitration proceedings have a life of their own regardless of whether an action at law based on the same controversy is dismissed.” [1] (Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1801 (Brock).) Since Defendant is only requesting dismissal of this action at law as opposed to the arbitration proceeding, Defendant’s request is appropriate. Therefore, the Court exercises its discretion to dismiss this action at law.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

[1] The trial court in Brock went so far as to dismiss not just the action at law, but also the underlying arbitration, which the Court of Appeals roundly condemned as overreach.