2011-00099323-CU-MM

Marcus L Hudson vs. James Ma

Nature of Proceeding: Motion to Dismiss

Filed By: Hewitt, Shanan L.

Defendant James Ma’s (“Defendant”) motion to dismiss pursuant to Code of Civil
Procedure § 583.410 and California Rules of Court 3.1340 and 3.1342 for failing to
exercise reasonable diligence in prosecuting this action and bringing it to trial within
two (2) years after this action was commenced is UNOPPOSED and is GRANTED.

Defendant has complied with Rule of Court 3.1342, which requires service and filing of
the notice of motion at least 45 days before the date set for hearing. Opposition was
due 15 days after service, but no opposition has been filed. The Court construes
Plaintiff Marcus Hudson’s (“Plaintiff”) lack of opposition to this dispositive motion as a
concession of the merits of defendant’s motion. (Cal. Rule of Court 3.1342(b) (as to
motions to dismiss for delay in prosecution, “[t]he failure of the opposing party to serve
and file a written opposition may be construed by the court as an admission that the
motion is meritorious, and the court may grant the motion without a hearing on the
merits.”).)

Further, California Rule of Court 3.1342(e) provides that in ruling on this motion, “the
court must consider all matters relevant to a proper determination of the motion,
including: (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 any settlement
negotiations or discussions; (4) The diligence of the parties in pursuing discovery or
other pretrial proceedings, including any extraordinary relief sought by either party; (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 issue.” In ruling on this
motion, the Court has considered and applied these factors to its analysis. In deciding
whether discretionary dismissal is appropriate, the Court must also be guided by the
policies set forth in Code of Civil Procedure § 583.130, which provides, in pertinent
part, that “a plaintiff shall proceed with reasonable diligence in the prosecution of an
action.”

This self-represented Plaintiff initiated his action on March 11, 2011, more than three
years ago. Defendant’s counsel represents that, since the case was initiated,
Defendant has propounded discovery upon Plaintiff, but Plaintiff has never provided
any discovery responses and never responded to meet and confer attempts by
defense counsel. Prior to the case management conference on September 12, 2013,
Plaintiff did not file any case management statement. To date, the court’s electronic
docket does not reflect any filings by Plaintiff since 2011. Plaintiff also failed to file any
written opposition to the pending motion, and defense counsel indicates that Plaintiff
has twice refused service of these motion papers: when corrections staff attempted to
provide Plaintiff with the envelope containing the papers, he refused to receive them
on two separate dates. On balance, the factors stated in Rule of Court 3.1342(e)
weigh in favor of dismissal of this case. Plaintiff has not shown diligence in pursuing
his case, in participating in discovery, in accepting service of papers relating to his
case, or in responding to motions. Defense counsel filed two declarations supporting
these representations, with supporting exhibits. (Declarations of Shanan L. Hewitt
(“Hewitt Decls.”); Exh. A to Hewitt Decl. of May 5, 2014 (envelope reflecting that
Plaintiff twice refused to accept mail-served copies of pending motion).)

Accordingly, this Court exercises its discretion and grants the present motion to
dismiss without prejudice. This minute order is effective immediately. Pursuant to
California Rule of Court 3.1312, Defendant shall prepare a formal order and proposed
judgment of dismissal.