Judge: Yolanda Orozco, Case: 19STCV29112, Date: 2023-02-01 Tentative Ruling
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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.
Case Number: 19STCV29112 Hearing Date: February 1, 2023 Dept: 31
MOTION TO DISMISS FOR FAILURE TO PROSECUTE
TENTATIVE RULING
Defendant Jeremy Newman’s Motion for an Order Dismissing
Plaintiff’s Complaint for Failure to Prosecute is DENIED.
Legal Standard
California Code of Civil Procedure Section 483.510 states:
“(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.”
California Rules of Court, Rule
3.1342 contains
several factors that the Court must consider before granting a motion to
dismiss under this statute: (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.
Request for Judicial Notice
The Court may
take judicial notice of records of any court of record of the United States.
(Evid. Code, § 452(d)(2).) However, the court may only judicially notice the
existence of the record, not that its contents are the truth. (Sosinsky v.
Grant (1992) 6 Cal.App.4th 1548, 1565.)
Defendant Jeremy Newman requests judicial
notice of the following:
1. Plaintiff
Glenda Johnson’s First Amended Complaint, filed February 25, 2020, attached
hereto and incorporated by reference as Exhibit “RJN-1”.
2. Defendant
Santa Monica Community College District’s motion to compel Plaintiff to attend
deposition, filed November 18, 2022, attached hereto and incorporated by
reference as Exhibit “RJN-2”.
3. Plaintiff
Glenda Johnson’s opposition to Defendant Santa Monica Community College
District’s motion to compel Plaintiff to attend deposition, filed December 1,
2020, attached hereto and incorporated by reference as Exhibit “RJN-3”.
Defendants’
request for judicial notice is GRANTED.
Discussion
Late Filed Opposition
Motion to Dismiss
Defendant Jeremy Newman asserts good cause exists to dismiss Plaintiff’s case for failure to prosecute. Defendant states that Plaintiff’s failure to submit to discovery has resulted in multiple trial continuances. Defendant also asserts that Plaintiff has failed to comply with the Court’s mandatory settlement conference orders on January 12, 2022, and November 29, 2022.
Plaintiff asserts that there has been no delay to prosecute this case. Plaintiff has propounded extensive written discovery on Defendant Newman and SMCCD. (Mathew Decl. ¶ 12, Ex. A-G.) Plaintiff has also noticed Newman’s deposition. Plaintiff asserts that Plaintiff’s counsel has not appeared at hearings on motions to continue trial because Plaintiff stipulated to the first continuance and did not oppose the second continuance.
Plaintiff explains that she was first deposed on July 28, 2021, but the deposition was cut short because of Plaintiff’s medical condition. (Mathew Decl. ¶ 9.) Plaintiff’s refusal to continue her deposition resulted in this Court granting SMCCD’s Motion to Compel. (Min. Or. 01/05/23.) Plaintiff states that for nearly two years, between July 28, 2020, and November 10, 2022, Defendants failed schedule Plaintiff’s second deposition session. (Mathew Decl. ¶ 11.) Defendant Newman offers no explanation for that delay.
The Court notes that if Defendant Newman is not satisfied with Plaintiff’s delay in responding to discovery requests, Newman has a variety of tools, such as motions to compel and motions for terminating sanctions, that he can use to ensure Plaintiff’s compliance. Moreover, Defendant Newman fails to explain how he has been prejudiced by the delay or why motions to compel initial discovery were not more promptly filed.
Second, Defendant Newman asserts that Plaintiff has failed to comply with the Mandatory Settlement Conference (MSC) Order by initiating the completion of an intake form to present to the MSC department. Defendant Newman fails to recognize that any party may request a settlement conference but the MSC intake form must be jointly completed. (LASC Local Rule 3.25, subd. (d)(e).) If a party fails to attend or comply with the rules of the MSC, Local Rule 3.10, and California Rules of Court, rule 2.30(b), authorize the Court to impose sanctions. No request for sanctions has been made. Moreover, the Court ordered both parties to submit an intake form. (Pitts Decl.¶ 16, Ex. G.)
The Court finds that dismissal of this action is not warranted at this time since Defendant Newman has failed to show that Plaintiff delayed in prosecuting this action.
For the reasons stated, the Motion is DENIED.
Conclusion
Moving party to give notice.