Pending - Other Pending
Personal Injury - Motor Vehicle
DOES 1 TO 100
MOREY CHRISTOPHER J. ESQ.
MOREY CHRISTOPHER JOHN
BRIEF GARRETT MITCHEL
6/29/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
4/22/2019: Declaration re: Due Diligence
12/5/2018: Minute Order
12/5/2018: Ex Parte Application
DocketAffidavit (Affidavit of Due Diligence); Filed by Mark Fabrizio (Plaintiff)[+] Read More [-] Read Less
DocketDeclaration re: Due Diligence; Filed by Mark Fabrizio (Plaintiff)[+] Read More [-] Read Less
Docketat 08:30 AM in Department 4; Jury Trial - Not Held - Advanced and Continued - by Court[+] Read More [-] Read Less
DocketNotice of Rejection - Ex Parte Application Without Hearing (for Publication re: Devona)[+] Read More [-] Read Less
Docketat 10:00 AM in Department 4; Final Status Conference - Not Held - Advanced and Continued - by Court[+] Read More [-] Read Less
Docketat 08:30 AM in Department 4; Ex-Parte Proceedings - Held - Motion Granted[+] Read More [-] Read Less
DocketEx Parte Application (for an order to continue the current trial and FSC dates and all trial-related deadlines); Filed by Garrett Mitchel Brief (Attorney)[+] Read More [-] Read Less
DocketMinute Order ((Plaintiff's Ex-Parte application for an order to continue the...)); Filed by Clerk[+] Read More [-] Read Less
DocketAffidavit Of Due Diligence; Filed by Mark Fabrizio (Plaintiff)[+] Read More [-] Read Less
DocketAffidavit (of Due Diligence); Filed by Mark Fabrizio (Plaintiff)[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketComplaint; Filed by Mark Fabrizio (Plaintiff)[+] Read More [-] Read Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)[+] Read More [-] Read Less
Case Number: ****7038 Hearing Date: October 21, 2020 Dept: 28
Motion to Dismiss
Having considered the moving, opposing, and reply papers, the Court rules as follows.
On June 29, 2017, Plaintiff Mark Fabrizio (“Plaintiff”) filed a complaint against Defendant Devona Woods (“Defendant”). Plaintiff alleges motor vehicle negligence for an incident that occurred on July 8, 2015.
On May 14, 2020, Plaintiff filed an amendment to his complaint renaming Doe 51 as Defendant Arroyo Developmental Services (“Defendant Arroyo”)
On July 17, 2020, Defendant Arroyo filed a motion to dismiss pursuant to California Code of Civil Procedure section 583.420.
Trial is scheduled for Jun 15, 2021.
Defendant Arroyo asks the Court to dismiss Plaintiff’s action against Defendant Arroyo with prejudice because Plaintiff served Defendant Arroyo with the complaint over two years from filing this action.
“The court may in its discretion dismiss an action for delay in prosecution. . . .” (Code Civ. Proc. ; 583.410.) However, a court must first find either: (1) service has not been effectuated within two years since commencement of the action, (2) an action is not brought to trial within three years after it is commenced against a defendant, or (3) a new trial is granted and the action is not brought to trial within a certain time. (Code Civ. Proc. ; 583.420, subd. (a).)
After California Code of Civil Procedure section 583.420, subdivision (a) is satisfied, the Court analyzes a variety of relevant factors, including those prescribed in California Rules of Court, rule 3.1342, subdivision (e).
“(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.”
California Rules of Court, rule 2.30, subdivision (b) states “[i]n addition to any other sanctions permitted by law, the court may order a person, after written notice and an opportunity to be heard, to pay reasonable monetary sanctions to the court or an aggrieved person, or both, for failure without good cause to comply with the applicable rules.”
On June 29, 2017, Plaintiff commenced this action. (Fornwalt Decl., ¶ 4, Exh. B.) On March 17, 2020, Plaintiff learned of the true identity of Defendant Arroyo. (Brief Decl., ¶ 15.) On May 14, 2020, Plaintiff named Defendant Arroyo. (Fornwalt Decl., ¶ 11, Exh. G.) Also on May 14, 2020, Plaintiff served his complaint on Defendant Arroyo. (Ibid.)
Defendant Arroyo’s arguments are unavailing. Defendant Arroyo essentially argues that the action should be dismissed because: (1) the three-year mandatory dismissal deadline was just a few weeks away when Plaintiff effectuated service, (2) Defendant Arroyo will only have a fraction of the amount of time Plaintiff will have had to prepare for trial, and (3) Plaintiff could have discovered Defendant Arroyo’s name in performing a basic Google search. The three-year mandatory dismissal deadline has no relevance here. Additionally, Defendant Arroyo can move to continue trial if additional time is needed to prepare for trial. Lastly, a discovery of Defendant Arroyo’s true identity through a Google search would have hardily made a difference since Plaintiff had been told of the wrong name only a couple weeks before discovering the true name. (Brief Decl., ¶¶ 13-15, Exh. E.)
The Court finds the motion must be denied. Plaintiff learned of Defendant Arroyo’s identity less than two months before naming and serving Defendant Arroyo. The Court cannot find that such a delay justifies an ultimate sanction of dismissing Plaintiff’s action for failing to prosecute this action.
The motion to dismiss is DENIED.
Defendant Arroyo is ordered to give notice of this ruling.
The parties are directed to the header of this tentative ruling for further instructions.