Case Number: BC513452 Hearing Date: March 22, 2018 Dept: 92

ANTONIO CASTILLO,

Plaintiff(s),

vs.

SUNSET ENTERTAINMENT GROUP, LLC, ET AL.,

Defendant(s).

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Case No.: BC513452

[TENTATIVE] ORDER GRANTING MOTION TO DISMISS; DENYING MOTION FOR RELIEF FROM DISMISSAL

Dept. 92

1:30 p.m.

March 22, 2018

1. Defendant, Gordon California Properties, LLC’s Motion to Dismiss

Plaintiff, Antonio Castillo filed this action against Defendants, Sunset Entertainment Group, LLC, Alan Hajjar, Boulevard Nightlife Group, LLC, and Freddy Braidy for damages arising out of an assault and battery on Plaintiff by a patron of Defendants’ nightclub. Plaintiff filed his complaint on 6/27/13. Plaintiff named Doe 1, Gordon California Properties, LLC on 10/01/13.

On 1/30/18, Doe 1, Gordon, filed the instant motion to dismiss. It moves to dismiss the complaint pursuant to CCP §§583.410 and 583.420, which collectively permit the Court to dismiss an action if it has been pending for more three years and the plaintiff has not diligently prosecuted the action.

Defendant herein contends Plaintiff has taken no steps to prosecute his action against it. The Court has reviewed its file in this matter and finds Defendant is correct. While Plaintiff has taken steps to prosecute the action against some of the other defendants, including filing a notice of settlement and having defaults entered, there is nothing in the file to support a conclusion that Plaintiff is actively pursuing this action against Moving Defendant.

Importantly, Moving Defendant properly served its moving papers on Plaintiff, and any opposition to the motion was due on or before 3/09/18. The Court has not received opposition to the motion. Plaintiff’s failure to oppose the motion further supports the conclusion that he is not actively pursuing his case against Moving Defendant. Because the case against it has been pending for over three years (indeed, for over four years), and because Plaintiff has not actively been prosecuting the case against it, Gordon’s motion to dismiss is granted.

2. Plaintiff’s Motion for Relief From Order Dismissing Sunset Entertainment Group, LLC, et al.

a. Prior Order

On 1/23/18, the Court granted Defendants, Sunset Entertainment Group, LLC, Freddy Braidy, and Boulevard Nightlife Group’s unopposed motion to dismiss. The Court found Defendants met their burden to show Plaintiff had failed to prosecute his action against them, and in light of the lack of opposition, found they were entitled to have the case against them dismissed.

b. Grounds for Current Motion

On 2/21/18, Plaintiff filed the instant motion for relief. Plaintiff’s attorney declares he never received the motion to dismiss. He declares that, had he received the motion, he would have opposed it; he also includes a proposed copy of his opposition to the motion with his papers. He concludes the Court is obligated to set aside the dismissal, as it was entered as a result of attorney error. Specifically, Plaintiff contends the motion should be denied because Plaintiff propounded discovery on Defendants on 9/24/13, served them with Statements of Damages in August of 2016, filed a Notice of Settlement with other defendants in June of 2017, sought (unsuccessfully) to have Defendants’ defaults entered in August of 2017, and propounded additional discovery on Defendants in December of 2017 (after Defendants filed their motion to dismiss the action).

Additionally, Plaintiff argues the delay in prosecution was attributable to Defendants’ choice not to answer the complaint for approximately four years, which was not the fault of Plaintiff. Finally, Plaintiff’s attorney declares that he closed down his former law firm and joined his current firm in early 2016 as a partner, and he failed to calendar important dates with his computer system when he did so.

c. Attorney Declaration Supporting Relief from Dismissal

Pursuant to Bernasconi Comm’l Real Estate v. St. Joseph’s Regional Healthcare System (1997) 57 Cal.App.4th 1078, 1082 and J.A.T. Entertainment, Inc. v. Reed (1998) 62 Cal.App.4th 1485, 1492-1494, relief from dismissal is mandatory if the dismissal “results from” the plaintiff’s attorney’s failure to oppose a dismissal motion.

d. Law Governing CCP §583.420 Dismissals

If a plaintiff has not brought an action to trial within three years, the plaintiff must make a threshold showing of good cause for the delay in order to avoid dismissal. Wagner v. Rios (1992) 4 Cal.App.4th 608, 611. If and only if the plaintiff does so, then the Court must weigh the factors set forth in CRC 3.1342(e) to determine whether the case should be dismissed.

c. Analysis

The Court finds that the dismissal was entered not only because of Plaintiff’s failure to oppose the motion, but primarily because of Plaintiff’s failure to prosecute his action against Moving Defendants. The Court has considered Plaintiff’s opposition to Moving Defendants’ motion to dismiss on the merits and finds the opposition fails to show diligent prosecution.

As noted above, the initial burden is on Plaintiff to show good cause for failing to bring the action to trial within three years. Plaintiff states only two reasons for this failure: first, Defendants’ failure to answer the complaint, and second, Plaintiff’s attorney’s change of law firm. Neither establishes good cause for the delay in prosecution.

Defendants had no obligation to answer the complaint and bring the case at issue in order to somehow assist Plaintiff in moving the case along; indeed, as Defendants correctly note in their opposition to the motion for relief, the Rules of Court obligate a plaintiff to promptly seek entry of default against a defendant who fails to timely answer.

Additionally, Plaintiff’s attorney declares he changed law firms in “early 2016.” This action, however, was filed in June of 2013. Thus, almost three years had already passed when this change took place.

Even if the Court were to find some threshold good cause for the delay, under the factors enumerated in CRC 3.1342(e) the motion should still be granted. Defendant erroneously quotes the former CRC 373(e) in this regard; 373(e) is no longer a Rule of Court. The 3.1342(e) factors include (with a discussion accompanying each):

(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;

Defendants were promptly served with process after the case was initiated.

(2)The diligence in seeking to effect service of process;

Again, Defendants were promptly served with process after the case was initiated.

(3)The extent to which the parties engaged in any settlement negotiations or discussions;

Plaintiff pursued settlement with other parties to the action, but not with Moving Defendants.

(4)The diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party;

Plaintiff propounded discovery shortly after serving Defendants with the summons and complaint, but never filed motions to compel or otherwise followed up when they failed to respond. Plaintiff also propounded discovery AFTER Defendants filed their motion to dismiss.

(5)The nature and complexity of the case;

Plaintiff argues the case is complex because it was an assault and battery, involves multiple defendants, and involved a traumatic brain injury. Plaintiff failed, however, to show that the “complexity” of the case was the reason he did nothing as against Moving Defendants.

(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;

Plaintiff fails to show that any particularly complicated legal issues are presented.

(7)The nature of any extensions of time or other delay attributable to either party;

The only delay purportedly attributed to Moving Defendants was their failure to answer; Plaintiff, however, had the remedy of taking their default available at all times.

(8)The condition of the court’s calendar and the availability of an earlier trial date if the matter was ready for trial;

Obtaining a trial date has not played a role in the failure to prosecute.

(9)Whether the interests of justice are best served by dismissal or trial of the case; and

Discussed below.

(10)Any other fact or circumstance relevant to a fair determination of the issue.

Discussed below.

The Court finds dismissal is in the interest of justice. Plaintiff essentially “sat on his hands” with respect to Moving Defendants. Plaintiff failed to take their defaults when they did not answer the complaint, failed to move to compel when they did not respond to discovery, and waited years to attempt to have their defaults entered unsuccessfully. The Court, therefore, finds that the motion to dismiss was entered as a result of Plaintiff’s failure to prosecute the action, and not solely as a result of Plaintiff’s attorney’s failure to oppose the dismissal motion. The motion for relief from the dismissal is therefore denied.