CIV532372 UNIVERSAL HOME, ET AL. VS. KATHERINE ROBERTSON, ET AL.

UNIVERSAL HOME IMPROVEMENT, INC. ERIC C. KASTNER

KATHERINE ROBERTSON pro/per

CAROL BENNETT, 1460 O’BRIEN DRIVE ASSOCIATES, AIR PARTNERS-AUSTIN, LP AND BAY AT-AUSTIN, INC.’S motion for order for dismissal for failure to prosecute

TENTATIVE RULING:

The Motion of Defendants Carol Bennett, 1460 O’Brien Drive Associates, AIS Partners-

Austin LP and Bay At-Austin, Inc., for Dismissal for Failure to Prosecute, is DENIED.

In ruling on this motion, the court has discretion in whether to dismiss this action for

delay in prosecution. (See C.C.P. §§ 583.410(a).) In exercising its discretion, the court must consider all relevant matters, including certain factors identified in Cal. Rules of Court, Rule 3.1342(b). Other things being equal, the policy favoring trial on the merits is favored over the policy requiring dismissal for delay in prosecution. (C.C.P. § 583.130.)

Here, it is clear that Plaintiffs diligently prosecuted this action until Defendant Katherine Robertson’s (“Robertson”) bankruptcy filing. Then, it appears no action took place for about one year from July 2016 (when Robertson’s bankruptcy filing was discharged) until August 2017 (when Plaintiffs followed up regarding the bankruptcy case status). (See Schuermann Decl.) Once Plaintiffs discovered that Robertson’s bankruptcy stay had been lifted in August 2017, Plaintiffs’ counsel notified the court in October 2017, and the court set a case management conference for January 2018. (Id. at ¶¶ 6-7.) A trial date has now been set for June 4, 2018. Accordingly, the court finds that any delay in prosecution is insufficient to warrant dismissal after considering the relevant facts and circumstances.

Plaintiffs’ request for judicial notice is GRANTED. (See Evid. Code § 452(d).)