Case Number: BC646234 Hearing Date: October 16, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Danilo Rodis,

Plaintiff,

v.

Jeremy Rodriguez, et al.,

Defendants.

Case No.: BC646234

Hearing Date: October 16, 2018

[TENTATIVE] order RE:

motion To Stay the Litigation and Continue Trial

Background

This action arises out of a motor vehicle collision between Plaintiff Danilo Rodis (“Plaintiff”) and Defendant Jeremy Rodriguez (“Defendant”). Defendant filed the instant motion requesting a stay of these proceeding due to the fact that he is serving in the United States Navy and is currently stationed overseas in Japan. Plaintiff opposes the motion, and Defendant has replied.

This motion was first heard on September 24, 2018. In opposition, Plaintiff first argued that this motion was untimely filed and served as the motion was served by mail on August 27, 2018 when it should have been served on August 25, 2018 under CCP § 1005(b). At the hearing, Plaintiff also objected to evidence which Defendant introduced, for the first time, in his reply. In order to minimize any prejudice to Plaintiff arising out of the untimeliness of the service of Defendant’s moving papers and out of Defendant’s introduction of new evidence in its reply, the Court continued this motion to the instant date to enable Plaintiff to submit supplemental briefing and evidence.

On October 1, 2018, Plaintiff filed a two-page supplemental opposition reiterating its arguments relating to the procedural deficiencies and untimeliness of Defendant’s evidence in reply. The Court provided Plaintiff with ample opportunity to provide an opposition on the merits, yet Plaintiff refused to provide any substantive argument. Thus, the Court will evaluate this motion on the merits.

Legal Standard

The Servicemembers Civil Relief Act “provide[s] for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.” (50 U.S.C.A. § 3902.) At any time before final judgment in a civil action where a servicemember is a party, the court may on its own motion and shall, upon application by the servicemember, stay the action for a period of not less than 90 days, if two conditions are met: (1) a letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember’s ability to appear and stating a date when the servicemember will be available to appear; and (2) a letter or other communication from the servicemember’s commanding officer stating that the servicemember’s current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter. (50 U.S.C.A. § 3932, subd. (b).)

At any stage in any action in which a servicemember is involved during the period of military service or within 60 days thereafter, “the court, in its discretion on its own motion, and shall, on application to it by the servicemember or some person on his or her behalf, stay the action or proceeding unless, in the opinion of the court, the ability of the plaintiff to prosecute the action or the defendant to conduct his or her defense is not materially affected by reason of his or her military service.” (Mil. & Vet. Code, § 403.)

Discussion

Defendant is currently an E-3 Seamen with the United States Navy and is currently on active duty aboard the U.S.S. Ashland. (Def. Reply, Exh. C, ¶ 3.) When he is not actively deployed, Defendant is stationed at Sasebo, Japan. Defendant’s active service is set to continue through January 2022, and he will not be returning to the United States until May 31, 2020. Because he is at sea for months at a time, he is unable to receive communications from counsel regarding this lawsuit and cannot actively participate in the discovery process or trial. (Def. Reply, pg. 4.) Defendant’s Commanding Officer has submitted a letter certifying that Defendant is currently on active duty aboard the U.S.S. Ashland, and the projected rotation date is May 31, 2020. (Def. Reply, Exh. C, ¶ 3.)

In opposition, Plaintiff first argues that this motion was untimely filed and served as the motion was served by mail on August 27, 2018 when it should have been served on August 25, 2018 under CCP § 1005(b). However, Plaintiff then proceeds to oppose the motion on the merits. The Court has broad discretion to refuse to consider untimely filed papers. (See Rancho Mirage Country Club Homeowners Ass’n v. Hazelbaker (2016) 2 Cal.App.5th 252, 262-263.) The Court may also overlook a party’s failure to file its papers in accordance with applicable timelines to resolve the matter on the merits. (Gonzalez v. Santa Clara County Dep’t of Social Servs. (2017) 9 Cal.App.5th 162, 168.) Here, any prejudice to Plaintiff arising out of the untimeliness of service of Defendant’s moving papers has been mitigated by the continuance of the hearing on this motion. Plaintiff has had ample time since the initial September 24, 2018 hearing date to file a supplemental opposition on the merits and supporting evidence. The Court in its discretion will consider Defendant’s motion on the merits even though it was served on Plaintiff two days later than required under CCP § 1005(b).[1]

Second, Plaintiff argues that Defendant has failed to show that his military service will interfere with the litigation of this case. The Court disagrees. Defendant provides in his reply brief a letter signed by himself and his superior officer showing that Defendant’s homeport is in Japan, and Defendant is further assigned to a naval ship, which will prevent his ability to be contacted for long stretches of time. Defendant also attaches a copy of his orders confirming his assignments. Plaintiff argues in the supplemental opposition that such evidence is inadmissible hearsay, but the Court disagrees. 50 U.S.C.A. § 3932 (b) specifically requires letters showing servicemen’s unavailability. Therefore, such letters are admissible in this proceeding for the purposes of meeting the statutory requirements under federal law.

Accordingly, the Court finds that Defendant is a serviceman on active duty and that his service aboard the U.S.S. Ashland prevents his participation in his defense of this action. Defendant’s motion to stay the action is granted. It is hereby ordered that all proceedings in this action be stayed pending further order of this Court. A Status Conference to discuss the status of the stay is set for April 25, 2019 at 8:30 a.m. in this department. No later than ten days prior to the April 25, 2019 Status Conference, Defense Counsel must file and serve a declaration updating the Court as to the status of Defendant’s ability to participate in the litigation. If there is any change with the terms of Defendant’s military service such that Defendant becomes able to participate in the litigation of this case prior to April 25, 2019, Defense Counsel must file and serve a declaration updating the Court as to this development within 15 days of the change in Defendant’s status, and Defendant must contact Department 5 immediately to advance the April 25, 2019 status conference. The Court also hereby sets a trial setting conference on the same date of April 25, 2019 at 8:30 am to determine a new trial date based on the parties’ availability.

Conclusion and Order

Defendant’s motion to stay the action is granted. It is hereby ordered that all proceedings in this action be stayed pending further order of this Court.

A Status Conference to discuss the status of the stay is set for April 25, 2019 at 8:30 a.m. in this department. No later than ten days prior to the April 25, 2019 Status Conference, Defense Counsel must file and serve a declaration updating the Court as to the status of Defendant’s ability to participate in the litigation. If there is any change with the terms of Defendant’s military service such that Defendant becomes able to participate in the litigation of this case prior to April 25, 2019, Defense Counsel must file and serve a declaration updating the Court as to this development within 15 days of the change in Defendant’s status, and Defendant must contact Department 5 immediately to advance the April 25, 2019 status conference. The Court also hereby sets a trial setting conference on the same date of April 25, 2019 at 8:30 am to determine a new trial date based on the parties’ availability.

The moving party is ordered to provide notice of this order and file proof of service of such.

DATED: October 16, 2018 ___________________________

Elaine Lu

Judge of the Superior Court

[1] Defendant is, however, cautioned to adhere strictly to the requirements for service set forth in CCP § 1005(b) for future motions.