Case Number: BC509037    Hearing Date: July 15, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

BARBARA FIAMMETTA,
Plaintiff(s),
vs.

BRAD L. PENENBERG, M.D., ET AL.,

Defendant(s).

CASE NO: BC509037

[TENTATIVE] ORDER DENYING MOTION TO DISMISS, REQUEST FOR SANCTIONS, AND REQUEST TO CONTINUE TRIAL

Dept. 92
1:30 p.m. — #13
July 16, 2014

Defendant’s Motion to Dismiss, for Sanctions, and/or to Continue Trial is Denied.

1. Background Facts
Plaintiff, Barbara Fiammetta filed this action against Defendants, Brad L. Penenberg, M.D., Cedars-Sinai Medical Center, Wright Medical Technology, Inc., Wright Medical Group, Inc., and Harlan C. Amstuz, M.D for medical malpractice. Plaintiff filed her complaint on 5/15/13. To date, Plaintiff has not filed proof of service on any of the named defendants.

2. Initial Note
Both parties attach exhibits to their papers, and neither party tabbed exhibits in compliance with CRC 3.1110(f). The Court has considered the motion and opposition despite this defect, but will not consider future papers that violate the Rules of Court. The parties are requested to comply with all Rules of Court in the future in connection with this action.

3. Motion to Dismiss
Defendant, Brad Penenberg, M.D. moves to dismiss the complaint, contending Plaintiff has failed to prosecute the complaint and it should be dismissed. As an initial note, a motion to dismiss for failure to serve the summons and complaint does not constitute a general appearance on the part of the defendant. See CCP §583.220(b).

Involuntary dismissal of a civil action for delay in prosecution is governed by CCP §§ 583.110–583.430. Unless a statutory exception applies, the court must dismiss the action on any of the following grounds:
• Failure to serve defendant within 3 years or return proof of service within 60 days after the 3–year period. [CCP § 583.210]
• Failure to bring to trial within 5 years. [CCP § 583.310]
• Failure to bring to retrial within 3 years after a mistrial, order granting new trial or reversal on appeal. [CCP § 583.320]

A court may, in the exercise of its discretion, dismiss on any of the following grounds:
• Failure to serve defendant within 2 years. [CCP § 583.420(a)(1)]
• Failure to bring to trial within 2 years. [CCP § 583.420(a)(2)]
• Failure to bring to retrial within 2 years after a mistrial, order granting retrial or reversal on appeal. [CCP § 583.420(a)(3)].

Defendant herein recognizes that it has been less than two years (discretionary) and clearly less than three years (mandatory) since the complaint was filed. Defendant argues that the Court should dismiss the complaint despite the fact that dismissal is not per the statute.

In addition to the various statutory grounds set forth in §§583.110, et seq., the court has inherent authority to dismiss an action (recognized in CCP § 583.150). Exercise of this power has generally been confined to “sham” actions, or cases involving prejudicial delay in prosecution for less than the statutory periods. Two significant factors in exercising this discretionary power are: (a) whether the plaintiff’s conduct was “severe and deliberate”; and (b) whether alternatives less severe than dismissal are available to remedy the situation. “(S)ound exercise of discretion requires the judge to consider and use lesser sanctions unless the court’s authority cannot possibly be otherwise vindicated.” Lyons v. Wickhorst, (1986) 42 C3d 911, 917. The discretionary power to dismiss has been confined to two types of cases: (a) “sham” actions in which it is shown that the claim is fictitious or otherwise invalid; and (b) prejudicial delay in prosecution for less than the statutory periods for dismissal. Lyons v. Wickhorst, supra, 42 C3d at 915.

Defendant herein failed to make either showing. He failed to show that the case is merely a sham case. He also failed to show that the delay in serving the summons and complaint has prejudiced him. The motion to dismiss is therefore denied.

4. Motion for Sanctions
Defendant seeks sanctions per CRC 2.30. 2.30(b) provides, “In 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. For the purposes of this rule, “person” means a party, a party’s attorney, a witness, and an insurer or any other individual or entity whose consent is necessary for the disposition of the case. If a failure to comply with an applicable rule is the responsibility of counsel and not of the party, any penalty must be imposed on counsel and must not adversely affect the party’s cause of action or defense thereto.”

Defendant argues sanctions are appropriate per CRC 2.30 because Plaintiff has violated CRC 3.110(f). 3.110(f) provides, “If a party fails to serve and file pleadings as required under this rule, and has not obtained an order extending time to serve its pleadings, the court may issue an order to show cause why sanctions shall not be imposed.”

The motion for sanctions is denied, as CRC 3.110(f) expressly contemplates an Order to Show Cause hearing. The Court does, however, set an OSC re: sanctions for failure to file proof of service for three months from today’s date, Thursday, October 16, 2014 at 8:30 a.m. Plaintiff is ordered to either file proof of service by that date or to show cause, on that date, why she should not be sanctioned for failure to do so. The Court notes that 10/16/14 is almost a year and a half after Plaintiff originally filed her complaint.

5. Motion to Continue Trial
Trial in this case is currently set for 11/17/14. Defendant correctly notes that, if he is ultimately served with the summons and complaint, he will not be able to prepare for trial. At this time, however, that inquiry is purely academic; Defendant has not been served with the summons and complaint. The request to continue the trial is premature, as the Court cannot determine a new trial date unless and until the defendants are served in the action. The motion is therefore denied without prejudice to any defendant’s right to renew the motion if and when the defendants are served. The Court advises the parties that there is a stipulation and order available on-line in the personal injury section of the court’s website, and the parties are encouraged to use the stipulation and order to continue the trial if any of the defendants is ultimately served with the summons and complaint.

Dated this 16th day of July, 2014

Hon. Elia Weinbach
Judge of the Superior Court