Case Number: BC605313 Hearing Date: February 05, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT JESUS MARINO’S MOTION TO DISMISS; GRANTED

Background

This action arises out of a high school locker room fight on December 18, 2014 between Plaintiff Jesus Marino and Defendant Alex Robles. Plaintiff filed the complaint on December 24, 2015 for (1) negligence, (2) assault, (3) battery, (4) intentional infliction of emotional distress, (5) willful misconduct pursuant to California Civil Code section 1714.1, (6) negligence, Government Code sections 815.2, 815.6, 820, (7) dangerous condition of public property, Government Code sections 830, 835, 840.2, and 840.4, and (8) negligent hiring.

Upon filing the Complaint on December 24, 2015, Plaintiff also filed an Application for Appointment of Guardian Ad Litem, as Plaintiff was a minor at the time the lawsuit was filed. Plaintiff applied twice and was rejected both times on January 6, 2016 and April 22, 2016. On June 8, 2017, Plaintiff had not yet served the complaint, and the Court set an Order to Show Cause re Dismissal for Failure to Serve Complaint on September 1, 2017. The Court continued the OSC re Dismissal to October 19, 2017. On the continued date, Plaintiff did not appear and the Court dismissed the case without prejudice. Six months later, Plaintiff filed a motion to set aside the dismissal based on attorney mistake under Code of Civil Procedure section 473, subdivision (b). The motion was granted on June 12, 2018. According to Robles, Plaintiff served the complaint on September 11, 2018. On October 5, 2018, Robles propounded discovery requests on Plaintiff. Defendant Downey Unified School District (“District”) also served discovery and apparently Plaintiff did not respond, as the District filed four motions to compel discovery responses.

Robles now moves to dismiss the complaint based on Plaintiff’s unjustified delay in serving the summons and complaint. (Code Civ. Proc., §§ 583.410, subd. (a), 583.420, subd. (a)(1).) The District filed a joinder.

Motion to Dismiss

Code of Civil Procedure sections 583.410, subdivision (a) and 583.420, subdivision (a)(1) allow the court to dismiss an action for delay in prosecution where service of the complaint was not made within two years after the action was commenced against the defendant. When the plaintiff has not served the complaint within the two-year period, the plaintiff is required to show excusable delay. (Terzian v. County of Ventura (1994) 24 Cal.App.4th 78, 83.) Prejudice is presumed from unexplained delay, but lack of prejudice to a defendant remains a valid consideration where a plaintiff has acted diligently from the outset. (Ibid.)

Here, Plaintiff filed the complaint on December 24, 2015, and no proof of service for the summons and complaint on Robles appears in the Court’s file. According to Robles, Plaintiff served the summons and complaint on September 11, 2018. Because the Complaint was served much more than two years after filing, Plaintiff must show the delay from December 24, 2015 to September 11, 2018 was excusable.

Plaintiff offers two reasons to justify the delay: (1) Plaintiff’s applications for a Guardian Ad Litem order were rejected twice and (2) Plaintiff’s counsel made calendaring errors causing Plaintiff to miss both OSC re Dismissal dates, which lead to the complaint’s dismissal on October 19, 2017.

Plaintiff contends that he needed to obtain a guardian ad litem order before he could serve the summons because Plaintiff was a minor. (Opp. 5:1-3.) Plaintiff first applied for a guardian ad litem order on December 24, 2015. The first application was denied on January 6, 2016, for failure to include Plaintiff’s birth date. Over three months later, Plaintiff applied again for a guardian ad litem order. The second application was denied on April 22, 2016, for failure to have the Plaintiff sign as the applicant and for failure to state the relationship between the Plaintiff and his proposed guardian ad litem. Both rejections could have been avoided by properly filing out the guardian ad litem application. Plaintiff did not file a third guardian ad litem application.

In 2017, Plaintiff attained the age of majority (Robles makes this assertion and Plaintiff does not dispute it), relieving Plaintiff of the need to obtain a guardian ad litem before serving the summons and complaint. Nevertheless, Plaintiff did not serve the complaint on Robles until September 11, 2018. Plaintiff’s excuse to justify the delay is unpersuasive because Plaintiff, as an adult, did not need a guardian ad litem to serve the complaint as of 2017. Even if the Court assumes that Plaintiff could justifiably delay during the time the case was dismissed (October 19, 2017 to June 12, 2018), Plaintiff still has no sufficient explanation for not seeking to reinstate the case earlier, not filing a third guardian ad litem application, and not serving Robles during the follow periods: April 22, 2016 (when second guardian ad litem application was rejected) to October 18, 2017 (day before case was dismissed) and June 13, 2018 (day after dismissal was set aside) to September 11, 2018 (date of service of complaint on Robles). This unexplained period of delay is approximately one year and nine months. Nearly three years have passed since when Plaintiff filed the complaint to when Plaintiff served the complaint on Defendant Robles. These unexplained periods of delay are comparable to Terzian, where the plaintiff failed to serve the complaint for one year and six months after the plaintiff could have learned of the defendant’s name in a discovery response and where the complaint was not served on the defendant for almost three years after the complaint had been filed.

The second reason for delay — calendaring errors causing Plaintiff to miss both OSC re Dismissal dates — is no excuse. Up until the Court entered dismissal on October 19, 2017, the existence of the OSC dates did not prevent Plaintiff from taking the necessary steps to effect service.

In addition to the points above, the Court considered the factors set out in California Rules of Court, rule 3.1342(e) and the policies set forth in Code of Civil Procedure section 583.41. The Court considered the case file and the papers, declarations and data submitted by the parties, and the diligence of Plaintiff in seeking to effect service of process as discussed above. No evidence was presented about settlement negotiations. Since the complaint was served, the parties appear to be diligently pursuing discovery and other pretrial proceedings. The case does not appear complex. There appears to be no other pending litigation on this matter. Plaintiff caused significant delay as discussed above. No party contends the case is anywhere near ready for trial. There is a strong interest in allowing Plaintiff’s case to go forward as the matter concerns assault and battery. However, there is also a strong interest in dismissing cases that are stale to protect a defendant’s due process. The Court previously dismissed this case for Plaintiff’s failure to attend an OSC re Dismissal for failure to serve the complaint, further evidencing Plaintiff’s lack of prosecution and lack of reasonable diligence. There is no adequate explanation for this delay.

Plaintiff’s argument that Defendant cannot show prejudice regarding witnesses is unpersuasive because unexplained delay is presumptively prejudicial. (Terzian v. County of Ventura, supra, 24 Cal.App.4th at p. 83; Schumpert v. Tishman Co. (1988) 198 Cal.App.3d 598, 605-607 [“the law will presume injury from unreasonable delay”].)

The Motion to dismiss is GRANTED. The Complaint is DISMISSED as to Robles.

Joinder

On January 4, 2019, Defendant Downey Unified School District filed a joinder to this Motion, stating only that the District joined in Robles’ Motion and incorporated Robles’ Points and Authorities. This “joinder is not in the form of a motion and does not present any evidence or argument.” (Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1391 [superseded by statute on a different point].) “[A] notice of joinder does not alone constitute a motion. (Ibid.) A joinder is not a proper motion unless it comports with the typical requirements of the motion.

(Villae Nurseries, L.P. v. Greenbaum (2002) 101 Cal.App.4th 26, 46-47.) Among other things, a motion needs to be timely filed and served. (Cal. Rules of Court, rules 3.1113, 3.1342 [procedural requirements for motion to dismiss based for delay in prosecution].) A party moving to dismiss under Code of Civil Procedure sections 583.410-583.430 must serve and file a notice of motion at least 45 days before the date set for hearing of the motion. (Cal. Rules of Court, rules 3.1342(a).)

The District’s Joinder was filed and served on Plaintiff on January 4, 2019, less than 45 days before the hearing. Also, it provides no evidence regarding any service of the Complaint on the District. Because the District’s Joinder is deficient, the District’s request to dismiss is DENIED.

Moving party to give notice.