2010-00086103-CL-CL

Citibank South Dakota NA vs. Robert W Lucas

Nature of Proceeding:     Motion to Dismiss

Filed By:   Lucas, Robert W.
Filed By:    Lucas, Robert W.

Defendant Robert W. Lucas’ (“Lucas”) motion for discretionary dismissal for delay in
prosecution (CCP §§ 583.410, 583.420(a)(2)) is GRANTED.

Overview

This is a credit card collection case.  Plaintiff Citibank (South Dakota), N.A.’s
(“Citibank”) complaint contains common counts only.  Citibank filed the complaint in
August 2010, and Lucas answered in October of the same year.  Citibank has not
engaged in any discovery because it possessed all the necessary evidence from the
outset.  The only actions that Citibank took between August 2010 and March 19, 2014-
-roughly three and one-half years–are its (1) issuance of a written settlement demand
in August 2012, which expired by its terms on September 1, 2012, and (2) filing of a
CCP § 98 declaration in July 2013 for prepared testimony in lieu of direct testimony.
(Although Lucas denies that he received any settlement demand, the court assumes
that Citibank issued the demand for purposes of the instant motion.)  Citibank did not
file a timely Case Management Statement in compliance with applicable Local Rules.
Instead, Citibank waited until March 20, 2014 to file a Limited Civil Case Status
Memorandum.  Based on this procedural history, Lucas moves for a discretionary
dismissal on grounds of unexcused delay in prosecution.

Discussion

CCP § 583.420(a)(2) authorizes the court to dismiss an action not brought to trial
within, among other times, three years after commencement.  Section 583.420 serves
a dual purpose: it was enacted to discourage stale claims and promote justice by
preventing the revival of claims that have been allowed to slumber until evidence has
been lost, memories have faded, and witnesses have disappeared; and it was enacted
to compel reasonable diligence in the prosecution of actions, thereby expediting the
administration of justice.  Weighing against these considerations is a strong public
policy in favor of disposing of litigation on the merits.  Although that policy is generally
viewed as more compelling than the one seeking to promote prompt prosecution, it will
not prevail unless the plaintiff meets his burden of establishing excusable delay. (See
th
Roach v. Lewis (1993) 14 Cal.App.4   1179, 1182-1183.)

Any dismissal pursuant to § 583.420(a)(2) must be based on criteria set forth in
California Rule of Court 3.1342(e).  (See CCP § 583.410(b).)  That rule requires the
trial court to consider: (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
settlement negotiations or discussions; (4) The diligence of the parties in pursuing
discovery or other pretrial proceedings, including extraordinary relief; (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 issues. (See Wagner v. Rios (1992) 4 Cal.App.4th
608, 611 [citing former rule 373].)            Citibank has not met its burden of demonstrating excusable delay, and a dismissal is
appropriate.  This is a simple case requiring little if any discovery on Citibank’s part.
Although Citibank did issue a settlement demand, the demand expired without any
time-consuming negotiations.  Moreover, there has been no difficulty in serving Lucas
with process, and neither Lucas nor the court has contributed to the delay in
proceeding to trial.

Citibank argues that it filed its CCP § 98 to trigger a trial date.  That statute, however,
does not trigger a trial date, and Citibank cites no authority for its use of a CCP § 98
declaration for such a purpose.

Citibank also suggests that the court’s trial calendar has been so congested that
Citibank was somehow excused from following the prescribed trial-setting procedures.
The court rejects this argument as well.

Conclusion

The motion is GRANTED.

The minute order is effective immediately. Pursuant to CRC 3.1312, Lucas is directed
to lodge a judgment of dismissal for the court’s signature.