34-2010-00079869

Janet Keyzer vs. Regents of the University of California

Nature of Proceeding:      Motion to Dismiss

Filed By:    Acero, George A.

Defendant Regents of the University of California’s motion to dismiss for delay in
prosecution (CCP 583.420) is DENIED.

The parties’ requests for judicial notice are GRANTED.  In taking judicial notice of
these documents, the court accepts the fact of their existence, not the truth of their
th
contents.  (See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4   543, 590
[judicial notice of findings of fact does not mean that those findings of fact are true];
Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.)

Defendant moves for a discretionary dismissal for Plaintiff’s failure to bring the case to
trial within three years from the commencement of the action.

This lawsuit arises out of plaintiff’s previous employment at the University of California
at Davis. Specifically, plaintiff alleges she was retaliated against and ultimately
terminated in December 2007 for complaining about research which the University was
conducting on prisoners claimed to be disabled and suffering from chronic pain.  Procedural History

The following procedural background is pertinent to this motion.  Plaintiff filed her initial
complaint on September 18, 2009 in the Alameda County Superior Court.  Defendant
was served on November 24, 2009.  On December 30, 2009, the parties stipulated to
change venue.  However, there was a significant delay in the transfer of venue
because the court lost the file.  On May 25, 2010, the Notice of Transfer was issued
and the Sacramento Superior Court received the documents on June 10, 2010.
Defendant and the individual defendants filed a demurrer to the complaint, which was
scheduled to be heard on November 30, 2010, but dropped due to the filing of a first
amended complaint on November 24, 2010.   On November 30, 2010, the Court
granted Individual defendant, Vanderhoef’s special (anti-SLAAP) motion to strike the
four causes of action alleged against him.  Plaintiff filed a notice of appeal on the
Court’s anti-SLAPP order on January 28, 2011.  A remittitur was issued on August 9,
2011 after Plaintiff voluntarily dismissed the appeal.

Defendant filed a demurrer and motion to strike Plaintiff’s first amended complaint on
December 22, 2010. The Court sustained the demurrer with leave to amend on July 1,
2011.  With respect to the motion to strike, the Court requested additional briefing and
the motion was granted, in part, and denied, in part on September 8, 2011.  Plaintiff
filed her second amended on September 15, 2011. Defendant again demurred to the
complaint, which the Court overruled.  Defendant filed its answer to the second
amended complaint on January 10, 2012.  Trial is currently scheduled for February 24,
2014.

Analysis

Exclusionary Period

Code of Civil Procedure section 583.340 excludes the following periods from the
computation of the time in which an action must be brought to trial: the time during
which the jurisdiction of the court to try the action was suspended; the time during
which prosecution or trial of the action was stayed or enjoined; and the time during
which bringing the action to trial, for any other reason, was impossible, impracticable,
or futile.

Defendant argues that the Court should not exclude the time period caused by the
delay in the transfer of venue (150 days) or the appeal (224 days).  With respect to the
appeal of Vanderhoef’s Anti-SLAPP motion, the Court agrees with Defendant that the
time should not be excluded.  As noted in the Court’s April 21, 2011 Order on Plaintiff’s
motion to compel, the lawsuit against Defendant remained active during the appeal.
(See April 21, 2011 Order).

The Court disagrees with Defendant that the 150 day delay in the transfer of venue
should not be excluded.   Moore v. Powell (1977) 70 Cal.App.3d 583, 588, upon which
Defendant relies, is inapposite.  In Moore, the court held that the delay due to a
change of venue, including the nine-month delay involved in paying transfer fees did
not suspend the jurisdiction of the court.  Thus, the period was not tolled.  Here,
however, the significant delay in the transfer of venue was due to the Alameda County
Court misplacing the court file.  This delay was not the result of any inaction by any
party (unlike the failure to pay transfer fees).           CRC 3.1342 Factors

CRC Rule 3.1342 requires this Court to consider all matters relevant to a proper
determination of a motion to dismiss, including:

(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.

In opposition to the motion, Plaintiff argues that she has made a reasonable showing
of diligence and excusable delay.  She notes that Defendant filed multiple demurrers
and motions to strike Plaintiff’s complaint and amendments thereto.  Due to the Court’s
schedule, however, the motions were not scheduled until six months after the filing
thereof.  Even after tentative rulings were posted, the hearings were continued due
either to counsel’s schedule or the Court’s request for additional briefing, therefore
causing additional delay.  Thus, Defendant’s demurrer to the second amended
complaint was not ruled on until January 10, 2012 and Defendant did not answer the
complaint until January 19, 2012.

Plaintiff further argues that she has engaged in reasonable discovery.  After filing her
first amended complaint on December 2, 2010, she served two sets of form
interrogatories and one set of special interrogatories, which resulted in the filing of a
motion to compel. The Court granted the motion to compel on April 21, 2011.  Plaintiff
thereafter served requests for production of documents.  She has also taken the
deposition of two witnesses (which Defendant claims were not “central” witnesses).
Defendant has taken Plaintiff’s deposition as well as Dr. Ensign’s deposition.   Plaintiff
has also responded to Defendant’s discovery.  In late 2013, Plaintiff propounded
additional discovery, including Special Interrogatories, Request for Admissions,
Request for Production and supplemental requests.  It appears that Plaintiff has              recently taken six depositions and that four are scheduled in the coming month.

Plaintiff additionally contends that Defendant’s counsel’s notices of unavailability,
which amounts to approximately 172 days, was a factor in scheduling.  Plaintiff also
submitted a settlement demand in February 13, 2013.  Defendant characterizes as
“patently unreasonable” and blames Plaintiff for “scuttling” any reasonable prospect for
settlement.  (Motion, 7:17-18.)

Given the above, the Court finds that the interests of justice are best served by
allowing the case to proceed to trial.  Plaintiff has provided a reasonable excuse for the
delay and that she has acted diligently in the action.  Moreover, the Court is not
convinced by Defendant’ argument that the case should be dismissed because a
significant passage of time has caused Plaintiff and other witnesses to lose memory of
the events.  In its reply to the opposition, Defendant also identified several witnesses
whose deposition were taken after it filed the instant motion and were unable to recall
certain events.  Here, trial is scheduled for February 24, 2014, only two months from
now.  The Court is not convinced that the two extra months will cause these individuals
additional memory loss.  Further, neither party has demonstrated that it will be
disadvantaged due to memory loss.  To the extent Defendant argues that potential
witnesses, Ms. Cottman and Mr. Timmons, are not available, Defendant has not
explained whether these witnesses’ depositions were taken or whether they are wholly
unavailable to appear at trial.

Accordingly, the Court declines to exercise its discretion to dismiss the action.  The
motion is DENIED.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.