2010-00089202-CU-FR

Maria De La Cruz vs. Robert Henrichs

Nature of Proceeding: Motion to Dismiss

Filed By: Thomas, Albert

Self-represented Defendant Albert Thomas’ Motion to Dismiss Complaint for Failure to
Prosecute is DENIED.

Defendant seeks dismissal of this case under Code of Civil Procedure sections
583.410-583.430.

Pursuant to California Rules of Court, Rule 3.1342 (a), “A party seeking dismissal of a
case 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.” Under
subd. (b), within 15 days after service of the notice of motion, the opposing party may
serve and file a written opposition. Although the opposition to the merits of the motion
was filed late, it has been considered by the Court.

Cal Rules of Court, Rule 3.1342 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.”

(1) The Court’s File and Supporting Data

The original complaint was filed in this action on Oct. 12, 2010. A First Amended
Complaint was filed on Aug. 24, 2011; a Second Amended Complaint on Nov. 14,
2011, and a Third Amended Complaint on May 11, 2012.

The Court notes that although moving party complains that he has not been served by
the Court or opposing counsel, he has failed to file and serve a Notice of Change of
Address (MC-040) as required.

(2) Diligence In Seeking to Effect Service of Process

Plaintiff served defendant Thomas by service on his counsel of record on August 29,
2011. His initial responsive pleading [answer] to the First Amended Complaint was
filed on October 4, 2011. He has not filed a responsive pleading to the Third Amended
Complaint.

(3) Settlement Negotiations

Defendant Thomas complains that no settlement offers have been made to him.
However, he candidly admits that he failed to appear for the Mandatory Settlement
Conference on Sept. 18, 2013.

(4) Discovery

Defendant Thomas complains that plaintiff has failed to conduct any written discovery
as to him.

(5) Nature and Complexity of the Case

This is a complex action brought by 17 plaintiffs against 23 separate defendants. Ten
causes of action are alleged for fraud, elder abuse, rescission of contract, breach of
contract, breach of fiduciary duty, rescission due to material misrepresentation in
securities transaction, conspiracy, aiding and abetting fraud, intentional infliction of
emotional distress and embezzlement of funds are alleged. The plaintiffs contend that
defendants acted in concert, presenting investment opportunities to the plaintiffs,
promoting and soliciting the sale of securities in real estate developments bilking the
investors out of millions of dollars.

(6) Other Litigation

Although moving party asserts there is no other case pending relevant to this case,
opposing party explains that there is related litigation in Placer and Calaveras
counties. In Calaveras county, plaintiffs won default judgments in excess of $44
million dollars. In Placer county plaintiffs are awaiting the court’s decision on a motion
for summary judgment. All cases involve similar allegations of fraud. Both co-
defendant Henrichs and moving party Thomas were alleged to have conducted Ponzi
schemes, gone into default on the investment, and then found new investors from
whom to take millions of dollars to pay off the prior investors. The plaintiffs here
invested their life savings in these schemes. Plaintiffs assert that prosecution of those
actions has been demanding.

Moving party asserts that although Thomas filed for bankruptcy protection, the judge
returned the case to this court on May 24, 2011. The primary reason for the delay in
the prosecution of this action is the bankruptcy filings by defendants Robert Henrichs
and 28 fictitious business entities, which resulted in a stay of 301 days, the bankruptcy
filing of moving party Albert Thomas, which resulted in a stay of 224 days and the filing
by codefendant Michael Spencer for bankruptcy protection, resulting is a stay of 264
days.

Opposing party represents that as of the date of the June 2 hearing, the case will have
been pending for 1214 days. Of that time, as to moving defendant Thomas, only 990
days counts towards the discretionary dismissal period (approx. 2.7 years). As three
years have not yet passed, the Court should deny the motion.

In reply, moving party asserts that the plaintiff has used the incorrect dates for
calculation, that the action has been pending for 3.60 years, 3.43 years or 3.33 years.

(7) Extensions of Time

This matter was originally scheduled for trial on Nov. 4, 2013, shortly after the three
year discretionary dismissal deadline. On Oct. 31, 2013, good cause appearing, and
no opposition having been received, the Presiding Judge, in response to plaintiff’s
motion, vacated the trial date of November 4, 2013. Trial is now set for Dec. 2, 2014.

(8) Condition of the Court’s Calendar

After the matter was originally scheduled for trial in Nov. 2013, the matter was
continued to permit a settlement conference. Following that decision, the clerk on Jan.
23, 2014 set the matter for trial on Dec. 2, 2014, to accommodate the Court’s calendar.

(9) Whether the Interests of Justice Are Best Served By Dismissal or Trial of the Case

Thomas asserts that he has been prejudiced by the long delay, where some of the
allegations date back to 2006 and memories have dimmed.

Although, the case has not been brought to trial within the three or two years set forth
in C.C.P., sec. 583.410, et seq., the Court in the exercise of its discretion, denies the
motion to dismiss.

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