2010-00076734-CU-OR

Travis Gaffney vs. Larry E Goodrow

Nature of Proceeding: Motion to Dismiss for Failure to Bring Case to Trial within Three Years

Filed By: Langle, Gerald D.

The motion of Defendants Philip W. Rocco and Kathleen F. Rocco (collectively
“Defendants”) for a discretionary dismissal of the case due to Plaintiff’s failure to bring
the case to trial within three years from commencement of the action is DENIED.

This is a nonjudicial foreclosure case. Plaintiff is in propria persona. Defendants
allegedly served as Plaintiffs’ lenders. Defendants reside out of state.

Plaintiff filed the original complaint on 04/29/2010. Plaintiff attempted to serve
Defendants with the summons and complaint in California via substitute service.
Plaintiff filed proof that substitute service was made on 02/14/12. Defendants moved
twice to quash service, but both motions were dropped for failure to provide sufficient
notice of the motion. Defendants filed their answer on June 5, 2012, and thus made a
general appearance.

On 04/31/13, Plaintiff served the first amended complaint (“FAC”) on Defendants via
their counsel. On June 19, 2013, Defendants moved for an order quashing service of
the FAC and for a discretionary dismissal for failure to serve the summons within two
years/failure to bring the matter to trial within three years of commencement. The
court denied the motion to quash and dropped the motion for discretionary dismissal
due to defective service. Defendants filed their answer to the FAC on August 1, 2013.
Defendants now resubmit their motion for discretionary dismissal due to Plaintiff’s
failure to bring the matter to trial within three years after the action was commenced.
(See CCP § 583.420(a)(2)(A).)

In deciding whether the grant a discretionary dismissal, the court must consider all
applicable factors, including the interests of justice. (See CRC 3.1342(e).) The court
must also abide by the policy favoring of trials on the merits over any policy favoring
dismissal of actions due to failure to prosecute. (Id. Rule 3.1342(e)(10) [citing CCP §
583.130].) The court exercises its discretion in the instant matter by denying the
motion for a dismissal.
In denying the motion, the court rejects Defendants’ argument that the case should be
dismissed because Plaintiff did not successfully serve the summons for almost two
years after he filed the complaint. Defendants have not shown any prejudice, they
have filed answers to both the complaint and the FAC, and Plaintiff has otherwise
shown reasonable diligence in serving other defendants. The court also finds that at
least some of Plaintiff’s delay in prosecuting the case is due to the illness and death of
his mother in 2012. Even if Plaintiff could have been more diligent in conducting
discovery and moving the case to trial, the totality of circumstances do not warrant a
discretionary dismissal.

To the extent Plaintiff’s Opposition papers were late-filed and/or later-served, the court
nonetheless considers them because Defendants have filed a substantive Reply.

The court disregards documents that Plaintiff filed in response to the Reply; the Code
of Civil Procedure does not expressly allow for the filing of such documents.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.

Item 3 2010-00076734-CU-OR

Travis Gaffney vs. Larry E Goodrow

Nature of Proceeding: Motion to Withdraw as Counsel

Filed By: Langle, Gerald D.

The motion to be relieved as counsel for Defendants Greg Blunden, Pamela Blunden
and Phillip Malaspina is DENIED without prejudice because counsel did not lodge or
serve the mandatory proposed order pursuant to CRC 3.1362(d)-(e).

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.