2014-00161681-CU-PO

Sandra Faye Yaley vs. JM Environmental Incorporated

Nature of Proceeding: Motion to Dismiss

Filed By: Sullivan Bradley W.

Defendant JM Environmental, Inc.’s motion to dismiss for delay in prosecution pursuant to CCP § 583.410 et seq. is granted.

At the outset, Plaintiff’s opposition filed on May 31, 2018 is untimely. Unlike other types of motions, written opposition to a motion for delay in prosecution must be filed and served within 15 days after service of the notice of motion. “The failure of the opposing party to a 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.” (CRC Rule 3.1342.) Nevertheless, given the dispositive nature of this motion, the Court has considered the untimely opposition.

Pursuant to CCP § 583.420, the Court may dismiss an action where it has not been brought to trial within three years after the action has been commenced against the Defendant. (CCP § 583.420.) While California’s policy favors trial on the merits, there comes a time when that policy is overridden by California’s policy requiring dismissal for failure to prosecute with reasonable diligence. Van Keulen v. Cathay Pacific Airways, Ltd. (2008) 162 Cal. App. 4th 122, 130. “The competing considerations to be evaluated are the policies of discouraging stale claims and compelling reasonable diligence balanced against the strong public policy which seeks to dispose of litigation on the merits rather than on procedural grounds.” (Terzian v. County of Ventura (1994) 24 Cal.App.4th 78, 82-83.) “However, it is now well established that the policy [of preferring to dispose litigation on the merits] only comes into play when a plaintiff makes a showing of some excusable delay.” (Ladd v. Dart Equipment Corp. (1991)

230 Cal. App. 3d 1088, 1104.) The Court now turns to the factors supporting, vel non, its decision.

In determining whether to grant a motion to dismiss for delay in prosecution, the Court considers numerous factors set forth in CRC Rule 3.1342(e). Those factors are:

(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.

“[I]t has always been true and remains true that if, in the exercise of its discretion, the trial court determines that insufficient good cause or justification has been shown for the protracted delay, it may, and properly should, grant the motion to dismiss.” (City of Los Angeles v. Gleneagle Dev. Co. (1976) 62 Cal.App.3d 543, 561.)

In order to avoid dismissal for delay in prosecution, Plaintiff must demonstrate a reasonable excuse for such delay. (Wagner v. Rios (1992) 4 Cal.App.4th 608, 611-

612.) “[W]hen a trial court finds that the period of delay has been without sufficient justification, there is no requirement that prejudice be shown in the face of unjustifiable delay.” (Ladd v. Dart Equipment Corp., supra, at p. 1102.) “Where there has been a protracted and unexplained delay in prosecution, the defendant need not make an affirmative showing of prejudice.” (Wagner v. Rios (1992) 4 Cal.App.4th 608, 612.)

The slip and fall action was filed more than four years ago on April 10, 2014. Defendant’s counsel’s declaration shows that it filed its answer on September 22, 2014. (Sullivan Decl. Exh. B.) Plaintiff last propounded discovery on April 14, 2015. (Id. Exh. C.) The case was set for trial on February 1, 2016. That trial was continued by stipulation due to issues locating and interviewing witnesses. (Id. Exh. D.) The trial date and all statutory deadlines were vacated and the parties were referred back to the trial setting process. (Id. Exh. E.) The Court’s file reflects that on April 18, 2016, the case was set for trial on July 5, 2016. (ROA 32.) On April 19, 2016, the July 5, 2016 trial date was vacated. (ROA 33.) The case was never re-set for trial. Other than propounding discovery in April 2015, Plaintiff has taken no action to take this matter to trial.

In opposition, Plaintiff only argues that the only reason the case has not been resolved is because Plaintiff is still treating for the lower back injuries she suffered in the subject fall in April 2012. She argues that her treatment has been delayed by the workers compensation system and not her lack of diligence. This does not inform the instant motion, however. Plaintiff declares that she has received treatment in 2012, underwent extensive physical therapy, received additional treatment in 2014, returned for treatment in 2017, and recently underwent two injections to her hip in February and May 2018. (Yaley Decl. ¶¶ 15-21.) She also declares that her workers’ compensation case is pending and it “is her understanding” that her doctors’ request for additional treatment has been denied by her workers’ compensation carrier for the past year and a half. (Id. ¶ 23.) Again, this does not inform the motion. Plaintiff may always seek future medicals at trial. Continuing treatment alone is not a legal justification for delay in prosecution. Defendant argues that it was awaiting a settlement demand from Plaintiff that never came.

Plaintiff’s counsel declares that the parties have engaged on “extensive written discovery”. (Swartz Decl. ¶ 6.) Though, there is no evidence of any written discovery propounded since Plaintiff propounded discovery in April 2015. (Sullivan Decl. Exh. C.) Plaintiff’s counsel declares that Defendant never identified any witnesses to Plaintiff’s fall and that the supervisor who likely helped Plaintiff has not been employed by Defendant since 2012. (Swartz Decl. ¶¶ 8, 10.) Plaintiff’s counsel also points out that Defendant has not deposed Plaintiff. (Id. ¶ 7.)

Plaintiff’s showing is insufficient to establish good cause and is essentially no showing at all. This case has been pending for over four years and involves an incident in which Plaintiff was injured in 2012, over six years ago. The fact that Plaintiff may still be treating for her injuries is not a justification for failing to take this matter to trial. The fact that Plaintiff’s workers’ compensation carrier may have denied her doctors’ request for additional treatment also is not a justification for any delay. If these circumstances were sufficient, then every plaintiff in a personal injury action receiving ongoing treatment for injuries could avoid bringing the matter to trial by simply stating that their treatment is ongoing. The mere fact that Plaintiff was receiving ongoing treatment was no barrier to bringing the matter to trial. Indeed, Plaintiff could seek damages for any continuing and future treatment.

As shown from Defendant’s papers, Plaintiff has done nothing in this case since she propounded discovery in April 2015. Plaintiff failed to show that she has done anything in this case since that time. While she does not specifically make this argument, to the extent that Plaintiff suggests that Defendant has contributed to the delay because it did not identify any witnesses in its discovery responses and has not deposed her, this is not a justification for any delay. The burden to bring the matter to trial is Plaintiff’s. Defendant’s discovery responses and failure to depose Plaintiff did not prevent Plaintiff from bringing this matter to trial.

Critically, not only has Plaintiff failed to show that she has taken any action in this case since propounding discovery in April 2015, she has taken no action to set this matter for trial since Defendant filed the instant motion. The failure of a plaintiff to take any action in the extended notice period supports dismissal. (E.g., Corlett v. Gordon (1980) 106 Cal.App.3d 1005, 1014; Stephan v. American Home Builders (1971) 21 Cal.App.3d 402, 405-406.)

In considering the above, plus all of the relevant factors set forth in California Rules of Court, Rule 3.1342(e), which includes, the extent to which the parties engaged in settlement negotiations, the parties’ diligence in pursuing discovery or other pretrial proceedings, the complexity of the case, the condition of the court’s calendar, and whether the interests of justice are best served by dismissal, the Court finds that the action should be dismissed.

Indeed, this appears to be a relatively straightforward slip and fall action that Plaintiff has let linger for over four years. Plaintiff has not propounded any discovery since April 2015, made no pretrial motions and has done nothing to move the case to trial. The interests of justice are best served by dismissal. Indeed, the policy favoring disposition of cases on their merits “only comes into play when a plaintiff makes a showing of excusable delay.” (Ladd, supra, 230 Cal.App.3d at 1104.) No such showing was made here.

As a result, the Court grants Defendant’s motion to dismiss for failure to prosecute.

The Court will sign the proposed order.