Preview
1 Lee A. Sherman (Bar No. 172198)
lsherman@ctsclaw.com
2 Shawn I. Pardo (Bar No. 315810)
spardo@ctsclaw.com
3 CALLAHAN, THOMPSON, SHERMAN
& CAUDILL, LLP
4 2601 Main Street, Suite 800
Irvine, California 92614
5 Tel: (949) 261-2872
Fax: (949) 261-6060
6
Attorneys for Defendant,
7 AMAZING WOK
8
SUPERIOR COURT OF CALIFORNIA
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COUNTY OF SAN MATEO
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11 RON EICHMAN Case No.: 20-CIV-02474
12 JUDGE: Hon. Nancy L. Fineman
DEPARTMENT: 4
13 Plaintiff,
NOTICE OF MOTION AND MOTION TO
14 vs. DISMISS PLAINTIFF’S COMPLAINT
FOR FAILURE TO PROSECUTE
15 XI FIN LIN, LISA LIN LIAO, LIN LI, DA
QING ZHENG, AMAZING WOK; DOES 1 [Filed Concurrently with Declaration of Shawn
16 TO 20 I. Pardo and [Proposed] Order]
17 Date: June 18, 2024
Time: 2:00 p.m.
18 Defendant. Dept.: 4
19 COMPLAINT DATE: 6/15/2020
TRIAL DATE: Not Yet Set
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NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE
1 TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that on June 18, 2024, at 2:00 p.m. or as soon thereafter as the
3 matter may be heard in Department 4 of the above-referenced Court, Defendant Amazing Wok
4 (“Defendant”) will and hereby does move this Court for an Order dismissing the entire matter with
5 prejudice for failure to prosecute. This Motion is based upon Code of Civil Procedure Sections
6 583.310, 583.360, 583.410, 583.420 and California Rules of Court, Rules 3.1340 and 3.1342. This
7 Motion is premised upon the fact that Plaintiff Ron Eichman (“Plaintiff”) filed the present action on
8 June 15, 2020; nearly four years have passed, and Plaintiff has not brought this action to trial. In
9 addition, this matter was settled on March 3, 2021, and Plaintiff filed an unconditional notice
10 of settlement with the Court the next day on March 4, 2021. Since then, Plaintiff has refused to
11 honor the settlement, failed to take any action to lift the stay and prosecute the matter, and has
12 refused to dismiss the action. As a result, it is both necessary and proper for the Court to
13 dismiss this action with prejudice for failure to prosecute.
14 This Motion is based upon this Notice, the attached Memorandum of Points and Authorities,
15 the Declaration of Shawn I. Pardo, all the papers, documents and evidence on file with this Court,
16 and such other argument or evidence as may be presented at the hearing of this matter.
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18 DATED: April 9, 2024 CALLAHAN, THOMPSON, SHERMAN &
CAUDILL, LLP
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By
21 Lee A. Sherman
Shawn I. Pardo
22 Attorneys for Defendant
AMAZING WOK
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NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiff Ron Eichman (“Plaintiff”) claims to have sustained personal injuries as a result of
4 a slip and fall accident that occurred at Defendant Amazing Wok’s (“Defendant”) restaurant on or
5 about August 18, 2018. Plaintiff waited nearly two years to file his complaint for damages,
6 filing the pleading on June 15, 2020. The matter settled on March 3, 2021, and Plaintiff filed
7 an unconditional notice of settlement with the Court the next day on March 4, 2021. Since then,
8 Plaintiff has refused to honor the settlement, failed to take any action to lift the stay and prosecute
9 the matter, and has refused to dismiss the action. Defendant has been prejudiced by Plaintiff’s
10 delay in that witnesses and evidence bearing upon the alleged accident may now have been lost.
11 There have been 4 OSC Re: Dismissals held before this Court since May 2021. The Court
12 gave Plaintiff every opportunity to seek to lift the stay on the case and prosecute his claims. It was
13 only upon the Court’s own motion on March 26, 2024, over 3 years after Plaintiff filed an
14 unconditional notice of settlement with the Court, was the stay lifted.
15 Under California law, this Court has discretion to dismiss Plaintiff’s complaint for delay in
16 prosecution if the matter does not proceed to trial within two years of its filing. Moreover, Plaintiff’s
17 complete inactivity for 3 years evidences no reasonable diligence in the prosecution of this lawsuit
18 with no explanation for the inexcusable delay.
19 Accordingly, Defendant moves to dismiss this entire action pursuant to Code of Civil
20 Procedure Sections 583.310, 583.360, 583.410, 583.420 and California Rules of Court, Rules 3.1340
21 and 3.1342 with prejudice.
22 II. PERTINENT FACTS AND PROCEDURAL HISTORY
23 The alleged slip and fall accident occurred on August 19, 2018. Plaintiff did not file his
24 complaint until June 15, 2020, nearly two years after the accident. Defendant appeared in this action
25 for the first time on or about August 17, 2020. (Declaration of Shawn I. Pardo, “Pardo Decl.” at ¶
26 3.)
27 On August 26, 2020, Defendant promptly propounded a first set of written discovery on
28 Plaintiff. The deadline for Plaintiff to provided verified responses was September 29, 2020. Plaintiff
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NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE
1 failed to timely respond but later asked for a three-week extension to provide answers. Defendant
2 agreed to the extension request provided Plaintiff waive all objections, as his responses were
3 untimely. Plaintiff agreed and provided responses on or about October 22, 2020. (Pardo Decl. at ¶
4 4, Ex. A.)
5 A Case Management Conference was originally scheduled for October 23, 2020, but the
6 Court, on its own, continued the conference to December 3, 2020. On November 19, 2020, the Court
7 vacated the December 3, 2020 Case Management Conference and ordered the parties to participate
8 in alternative dispute resolution to be completed by February 23, 2021. (Pardo Decl. at ¶ 5 Ex. B.)
9 On January 8, 2021, Defendant took Plaintiff’s deposition. (Pardo Decl. at ¶ 6.)
10 On February 17, 2021, the parties participated in private mediation with Harris Weinberg of
11 ADR Services. While the matter did not settle at mediation, it settled two weeks later on March 3,
12 2021. (Pardo Decl. at ¶ 7, Ex. C.)
13 On March 4, 2021, Plaintiff filed an unconditional notice of settlement with the Court. (Pardo
14 Decl. at ¶ 8, Ex. D.)
15 On March 11, 2021, the case was stayed and an OSC Re: Dismissal was scheduled for May
16 13, 2021. (Pardo Decl. at ¶ 9, Ex. E.)
17 On May 13, 2021, Plaintiff’s counsel Christopher Goodroe (“Mr. Goodroe”) informed that
18 Court that he was still waiting on Plaintiff to sign the release so he could resolve a medical lien.
19 Accordingly, the Court continued the OSC Re: Dismissal to July 6, 2021. (Pardo Decl. at ¶ 10, Ex.
20 F.)
21 On July 6, 2021, Mr. Goodroe represented to the Court that there had been no progression in
22 receiving the release of the medical lien from Plaintiff and that he had not had any communication
23 with Plaintiff. Mr. Goodroe further reported that he was considering filing a motion to be relieved
24 as counsel. Accordingly, the Court again continued the OSC Re: Dismissal to October 13, 2021.
25 (Pardo Decl. at ¶ 11, Ex. G.)
26 On October 12, 2021, Plaintiff filed a substitution of attorney with the court. (Pardo Decl. at
27 ¶ 12, Ex. H.)
28 On October 13, 2021, Plaintiff’s new counsel, Michael Adams (“Mr. Adams”), informed the
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NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE
1 Court that he did not believe there was any settlement between the parties. (Pardo Decl. at ¶ 13, Ex.
2 I.)
3 Over two years later, on January 24, 2024, the Court held an informal discovery conference
4 pursuant to Plaintiff’s request. Mr. Adams failed to appear on Plaintiff’s behalf. (Pardo Decl. at ¶
5 14, Ex. J.)
6 On January 30, 2024, the Court held a Case Management and Trial Setting Conference.
7 Again, Mr. Adams failed to appear. Accordingly, the Court set an OSC Re: Dismissal of the Entire
8 Action for March 26, 2024. (Pardo Decl. at ¶ 15, Ex. K.)
9 On March 26, 2024, the Court went over the history of the case and decided to lift the stay.1
10 Defendant objected to the Court lifting the stay and requested that the case be dismissed for failure
11 to prosecute. At the hearing, the Court did not believe it had the power to dismiss the case, but
12 informed Defendant that it may bring a motion to dismiss. (Pardo Decl. at ¶ 16, Ex. L.)
13 III. STATUTORY AUTHORITY FOR DISMISSAL
14 Code of Civil Procedure section 583.410 states as follows:
15 (a) The court may in its discretion dismiss an action for delay in prosecution
16 pursuant to this article on its own motion or on motion of the defendant if to do
17 so appears to the court appropriate under the circumstances of the case.
18 (b) Dismissal shall be pursuant to the procedure and in accordance with the criteria
19 prescribed by rules adopted by the Judicial Council.
20 Code of Civil Procedure Section 583.310 states as follows:
21 (a) The court may not dismiss an action pursuant to this article for delay in
22 prosecution except after one of the following conditions has occurred:
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24 (2) The action is not brought to trial within the following times:
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26 (B) Two years after the action is commenced against the defendant if the Judicial
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Mr. Adams was admonished by the Court for his failure to appear at two prior hearings and for being late to this
hearing.
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NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE
1 Council by rule adopted pursuant to Section 583.410 so prescribes for the court
2 because of the condition of the court calendar or for other reasons affecting the
3 conduct of litigation or the administration of justice.
4 The Judicial Council has adopted a rule extending discretion to California courts to dismiss an action
5 for failure to prosecute. California Rules of Court, rule 3.1340 states as follows:
6 (a) Discretionary dismissal two years after filing The court on its own motion or
7 on motion of the defendant may dismiss an action under Code of Civil Procedure
8 sections 583.410-583.430 for delay in prosecution if the action has not been
9 brought to trial or conditionally settled within two years after the action was
10 commenced against the defendant. . . . (Emphasis added.)
11 To assist courts in making such determinations, the Judicial Council went on to enact California
12 Rules of Court, Rule 3.1342, which states in the pertinent part as follows:
13 (a) Notice of motion
14 A party seeking dismissal of a case under Code of Civil Procedure sections
15 583.410-583.430 must serve and file a notice of motion at least 45 days before the
16 date set for hearing of the motion. The party may, with the memorandum, serve
17 and file a declaration stating facts in support of the motion. The filing of the notice
18 of motion must not preclude the opposing party from further prosecution of the
19 case to bring it to trial.
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21 (e) Relevant matters
22 In ruling on the motion, the court must consider all matters relevant to a proper
23 determination of the motion, including:
24 (1) The court's file in the case and the declarations and supporting data
25 submitted by the parties and, where applicable, the availability of the
26 moving party and other essential parties for service of process;
27 (2) The diligence in seeking to effect service of process;
28 (3) The extent to which the parties engaged in any settlement negotiations
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1 or discussions;
2 (4) The diligence of the parties in pursuing discovery or other pretrial
3 proceedings, including any extraordinary relief sought by either party;
4 (5) The nature and complexity of the case;
5 (6) The law applicable to the case, including the pendency of other litigation
6 under a common set of facts or determinative of the legal or factual issues
7 in the case;
8 (7) The nature of any extensions of time or other delay attributable to either
9 party;
10 (8) The condition of the court's calendar and the availability of an earlier
11 trial date if the matter was ready for trial;
12 (9) Whether the interests of justice are best served by dismissal or trial of
13 the case; and
14 (10) Any other fact or circumstance relevant to a fair determination of the
15 issue.
16 The Court must be guided by the policies set forth in Code of Civil Procedure section 583.130.
17 IV. APPLICATION OF THE FOREGOING FACTORS FAVORS DISMISSAL
18 Before considering the foregoing factors, it is important to note that trial of this matter did
19 not occur within two years of the filing of Plaintiff’s complaint. A review of Plaintiff’s complaint
20 establishes that it was filed on June 15, 2020. To avoid a discretionary motion to dismiss for failure
21 to prosecute, then, Plaintiff was required to bring his action to trial by June 15, 2022. Plaintiff clearly
22 failed to do so. Plaintiff’s failure to do so provides a prerequisite for the present motion. (See, C.C.P.
23 § 583.310.)
24 As such, this Court should now consider the factors identified in Rule 3.1342 above to
25 determine whether the present motion should be granted. Application of those factors to the evidence
26 herein supports a determination that it is proper to dismiss Plaintiff’s action for failure to prosecute.
27 (1) Availability of Defendants and Delay In Service of Complaint
28 The first two factors are related: availability of Defendant for service of process and delay in
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1 service. Those two factors are considered jointly.
2 Any consideration of delay in service of the complaint must encompass a consideration
3 of delay in filing the present action; for a plaintiff delays service by delaying the filing of
4 his/her complaint. Here, that delay was substantial. Plaintiff's alleged accident occurred on or
5 about August 18, 2018. Plaintiff delayed filing his complaint for nearly two years, filing only a
6 month before the running of the statute of limitations. During the intervening years, employees
7 seek employment elsewhere, memories fade and details are lost.
8 (2) The Existence of Settlement Discussions Between the Parties
9 This factor also weighs in favor of dismissal. The record is clear that the case settled on
10 March 3, 2021, and Plaintiff filed an unconditional notice of settlement with the Court the next day
11 on March 4, 2021. At no point in the following 7 months did Plaintiff or Mr. Goodroe represent to
12 the Court or Defendant that they were reneging on the settlement.
13 (3) The Diligence of the Parties in Pursuing Discovery
14 Defendant diligently pursued discovery (3 sets of written discovery, subpoenaed pertinent
15 records, and took Plaintiff’s deposition) which assisted in obtaining an agreed upon settlement on
16 March 3, 2021. Plaintiff propounded a basic set of written discovery 8 months after filing his
17 complaint on February 1, 2021, and took no depositions.
18 (4) The Nature and Complexity of the Action
19 The present action arises from an alleged slip and fall that occurred over 5 years ago. Thus,
20 the case is not unduly complex. This fact, however, also weighs in favor of dismissing the action for
21 failure to prosecute. Indeed, which Defendant denies liability, the action is relatively simple and
22 straightforward. There are no complex fact patterns or issues which need to be addressed such that
23 a delay of this magnitude is justified. As a result, the lack of complexity only serves to underscore
24 the fact that the delay here is inexcusable and unjustified.
25 (5) The Law Applicable to this Case and/or Pendency of Other Litigation
26 As discussed above, the law applicable to this case is well known and established. There are
27 no novel legal theories or complicated legal issues that would justify the delay in prosecuting this
28 action. In addition, there are no other pending actions which affect or relate to this matter or justify
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1 any delay.
2 (6) The Condition of the Court’s Calendar
3 This case was stayed from March 4, 2021 to March 26, 2024, clogging up the Court’s
4 calendar for over 3 years. The Court should not continue to adjust its calendar for the benefit of
5 Plaintiff – who has refused to honor his settlement with Defendant, failed to take any action to lift
6 the stay and prosecute the matter for over 3 years, and has refused to dismiss the action.
7 (7) The Interests of Justice are Best Served by Dismissal
8 As discussed above, Plaintiff’s alleged accident occurred over 5 years ago. Plaintiff’s failure
9 to diligently prosecute his claim has severely prejudiced Defendant’s ability to obtain discovery,
10 testimony, and evidence necessary to prepare this matter for trial. Furthermore, during the delay
11 occasioned by Plaintiff’s lack of diligence, employees seek employment elsewhere, memories
12 fade, evidence grows stale and witnesses lives outside of litigation move on. Certainly,
13 Plaintiff should not be entitled to benefit from his dilatory conduct by forcing Defendant to
14 proceed to trial in this matter. As a result, the interests of justice favor the granting of this motion.
15 V. PLAINTIFF’S INEXCUSABLE DELAY FAVORS DISMISSAL
16 As explained by the First District Court of Appeal in Wagner v. Rios (1992) 4 Cal.App.4th
17 608, timing is not the only factor for a trial court to consider in deciding whether to grant a motion
18 for discretionary dismissal. “In order to avoid a dismissal for delay in prosecution, the plaintiff must
19 show a reasonable excuse for such delay; once that showing is made, the trial court must consider
20 all pertinent factors, including that under rule 373(e)2 and any prejudice to the defendant for the
21 delay, before deciding to dismiss.” (Id. at 611-612.) The Court went on to note that “where there has
22 been a protracted and unexplained delay in prosecution, the defendant need not make an affirmative
23 showing of prejudice. Prejudice is inferred from the delay itself.” (Id. at 612.) This holding
24 concerning prejudice is consistent with the California Supreme Court precedent on the matter. In
25 Blank v. Kirwan (1985) 39 Cal.3d 311, the Supreme Court rejected the notion that a defendant must
26 show prejudice by a plaintiff’s failure to prosecute, holding that “even if they have not, legislative
27 policy underlying section 583 is not grounded solely in prejudice caused by delay to a defendant. Its
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California Rule of Court 373 is now Rule 3.1342.
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1 purpose, too, is to expedite the administration of justice by compelling every person who files an
2 action to prosecute it with promptness and diligence.” (Blank, 39 Cal.3d at 332.)
3 Nearly four years have passed since Plaintiff filed his Complaint and more than three years
4 have passed since the case settled. The case had been stayed since March 4, 2021. It was not until
5 March 26, 2024, during the fourth OSC Re: Dismissal, that the Court decided to lift the stay on its
6 own motion.
7 There is no excuse for this delay. The delay arises entirely from Plaintiff’s failure to honor
8 the unconditional settlement or prosecute the claim. The fact of the matter is Plaintiff never sought
9 to lift the stay despite substituting in a new attorney on October 12, 2021 – such neglect could only
10 arise from case abandonment.
11 VI. CONCLUSION
12 Nearly four years have elapsed since this matter was filed with this Court. Plaintiff has
13 inexcusably failed to prosecute his claim which has severely prejudiced Defendant. As such,
14 Defendant respectfully requests that this Court dismiss this matter with prejudice.
15
DATED: April 9, 2024 CALLAHAN, THOMPSON, SHERMAN &
16 CAUDILL, LLP
17
18 By
Lee A. Sherman
19 Shawn I. Pardo
Attorneys for Defendant
20 AMAZING WOK
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NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE
PROOF OF SERVICE
1
STATE OF CALIFORNIA )
2 )
COUNTY OF ORANGE )
3
I am employed in the County of Orange, State of California, I am over the age of 18 years and not
4 a party to the within action; my business address is 2601 Main Street, Suite 800, Irvine, California.
5 On this date, April 9, 2024, I served the foregoing document described as:
6 NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT
FOR FAILURE TO PROSECUTE
7
(By United States Mail) I placed the envelope for collection and mailing, following our
8 firm’s ordinary business practices. I am familiar with our firm's practice for collecting and
processing correspondence for mailing. On the same day that correspondence is placed for
9 collection and mailing, it is deposited in the ordinary course of business with the United States
Postal Service, in a sealed envelope with postage fully prepaid.
10
X (By electronic service) Based on a court order or an agreement of the parties to accept
11 service by electronic transmission, I caused the documents to be sent to the persons at the electronic
notification addresses listed below.
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I declare under penalty of perjury under the laws of the State of California that the above is true
13 and correct. I further declare that I am employed in the office of a member of the bar of this court
at whose direction the service was made.
14
Executed on April 9, 2024, at Irvine, California.
15
16 /s/ Zina V. Lomeli
ZINA V. LOMELI
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SERVICE LIST
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Case Name : Ron Eichman v. Xi Fin Lin, et al.
19 Court : San Mateo County Superior Court
Case Number : 20-CIV-02474
20
Michal E. Adams, Esq. Attorney for Plaintiff,
21 Law Offices of Michael E. Adams RON EICHMAN
600 Allerton Street, Suite 200
22 Redwood City, CA 94063
Tel: (650) 599-9463
23 Fax: (650) 599-9785
Email: michael@michaeleadamslaw.com
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Preview
1 Lee A. Sherman (Bar No. 172198) lsherman@ctsclaw.com 2 Shawn I. Pardo (Bar No. 315810) spardo@ctsclaw.com 3 CALLAHAN, THOMPSON, SHERMAN & CAUDILL, LLP 4 2601 Main Street, Suite 800 Irvine, California 92614 5 Tel: (949) 261-2872 Fax: (949) 261-6060 6 Attorneys for Defendant, 7 AMAZING WOK 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 11 RON EICHMAN Case No.: 20-CIV-02474 12 JUDGE: Hon. Nancy L. Fineman DEPARTMENT: 4 13 Plaintiff, NOTICE OF MOTION AND MOTION TO 14 vs. DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE 15 XI FIN LIN, LISA LIN LIAO, LIN LI, DA QING ZHENG, AMAZING WOK; DOES 1 [Filed Concurrently with Declaration of Shawn 16 TO 20 I. Pardo and [Proposed] Order] 17 Date: June 18, 2024 Time: 2:00 p.m. 18 Defendant. Dept.: 4 19 COMPLAINT DATE: 6/15/2020 TRIAL DATE: Not Yet Set 20 21 22 23 24 25 26 27 28 -1- NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE 1 TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on June 18, 2024, at 2:00 p.m. or as soon thereafter as the 3 matter may be heard in Department 4 of the above-referenced Court, Defendant Amazing Wok 4 (“Defendant”) will and hereby does move this Court for an Order dismissing the entire matter with 5 prejudice for failure to prosecute. This Motion is based upon Code of Civil Procedure Sections 6 583.310, 583.360, 583.410, 583.420 and California Rules of Court, Rules 3.1340 and 3.1342. This 7 Motion is premised upon the fact that Plaintiff Ron Eichman (“Plaintiff”) filed the present action on 8 June 15, 2020; nearly four years have passed, and Plaintiff has not brought this action to trial. In 9 addition, this matter was settled on March 3, 2021, and Plaintiff filed an unconditional notice 10 of settlement with the Court the next day on March 4, 2021. Since then, Plaintiff has refused to 11 honor the settlement, failed to take any action to lift the stay and prosecute the matter, and has 12 refused to dismiss the action. As a result, it is both necessary and proper for the Court to 13 dismiss this action with prejudice for failure to prosecute. 14 This Motion is based upon this Notice, the attached Memorandum of Points and Authorities, 15 the Declaration of Shawn I. Pardo, all the papers, documents and evidence on file with this Court, 16 and such other argument or evidence as may be presented at the hearing of this matter. 17 18 DATED: April 9, 2024 CALLAHAN, THOMPSON, SHERMAN & CAUDILL, LLP 19 20 By 21 Lee A. Sherman Shawn I. Pardo 22 Attorneys for Defendant AMAZING WOK 23 24 25 26 27 28 -2- NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Plaintiff Ron Eichman (“Plaintiff”) claims to have sustained personal injuries as a result of 4 a slip and fall accident that occurred at Defendant Amazing Wok’s (“Defendant”) restaurant on or 5 about August 18, 2018. Plaintiff waited nearly two years to file his complaint for damages, 6 filing the pleading on June 15, 2020. The matter settled on March 3, 2021, and Plaintiff filed 7 an unconditional notice of settlement with the Court the next day on March 4, 2021. Since then, 8 Plaintiff has refused to honor the settlement, failed to take any action to lift the stay and prosecute 9 the matter, and has refused to dismiss the action. Defendant has been prejudiced by Plaintiff’s 10 delay in that witnesses and evidence bearing upon the alleged accident may now have been lost. 11 There have been 4 OSC Re: Dismissals held before this Court since May 2021. The Court 12 gave Plaintiff every opportunity to seek to lift the stay on the case and prosecute his claims. It was 13 only upon the Court’s own motion on March 26, 2024, over 3 years after Plaintiff filed an 14 unconditional notice of settlement with the Court, was the stay lifted. 15 Under California law, this Court has discretion to dismiss Plaintiff’s complaint for delay in 16 prosecution if the matter does not proceed to trial within two years of its filing. Moreover, Plaintiff’s 17 complete inactivity for 3 years evidences no reasonable diligence in the prosecution of this lawsuit 18 with no explanation for the inexcusable delay. 19 Accordingly, Defendant moves to dismiss this entire action pursuant to Code of Civil 20 Procedure Sections 583.310, 583.360, 583.410, 583.420 and California Rules of Court, Rules 3.1340 21 and 3.1342 with prejudice. 22 II. PERTINENT FACTS AND PROCEDURAL HISTORY 23 The alleged slip and fall accident occurred on August 19, 2018. Plaintiff did not file his 24 complaint until June 15, 2020, nearly two years after the accident. Defendant appeared in this action 25 for the first time on or about August 17, 2020. (Declaration of Shawn I. Pardo, “Pardo Decl.” at ¶ 26 3.) 27 On August 26, 2020, Defendant promptly propounded a first set of written discovery on 28 Plaintiff. The deadline for Plaintiff to provided verified responses was September 29, 2020. Plaintiff -3- NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE 1 failed to timely respond but later asked for a three-week extension to provide answers. Defendant 2 agreed to the extension request provided Plaintiff waive all objections, as his responses were 3 untimely. Plaintiff agreed and provided responses on or about October 22, 2020. (Pardo Decl. at ¶ 4 4, Ex. A.) 5 A Case Management Conference was originally scheduled for October 23, 2020, but the 6 Court, on its own, continued the conference to December 3, 2020. On November 19, 2020, the Court 7 vacated the December 3, 2020 Case Management Conference and ordered the parties to participate 8 in alternative dispute resolution to be completed by February 23, 2021. (Pardo Decl. at ¶ 5 Ex. B.) 9 On January 8, 2021, Defendant took Plaintiff’s deposition. (Pardo Decl. at ¶ 6.) 10 On February 17, 2021, the parties participated in private mediation with Harris Weinberg of 11 ADR Services. While the matter did not settle at mediation, it settled two weeks later on March 3, 12 2021. (Pardo Decl. at ¶ 7, Ex. C.) 13 On March 4, 2021, Plaintiff filed an unconditional notice of settlement with the Court. (Pardo 14 Decl. at ¶ 8, Ex. D.) 15 On March 11, 2021, the case was stayed and an OSC Re: Dismissal was scheduled for May 16 13, 2021. (Pardo Decl. at ¶ 9, Ex. E.) 17 On May 13, 2021, Plaintiff’s counsel Christopher Goodroe (“Mr. Goodroe”) informed that 18 Court that he was still waiting on Plaintiff to sign the release so he could resolve a medical lien. 19 Accordingly, the Court continued the OSC Re: Dismissal to July 6, 2021. (Pardo Decl. at ¶ 10, Ex. 20 F.) 21 On July 6, 2021, Mr. Goodroe represented to the Court that there had been no progression in 22 receiving the release of the medical lien from Plaintiff and that he had not had any communication 23 with Plaintiff. Mr. Goodroe further reported that he was considering filing a motion to be relieved 24 as counsel. Accordingly, the Court again continued the OSC Re: Dismissal to October 13, 2021. 25 (Pardo Decl. at ¶ 11, Ex. G.) 26 On October 12, 2021, Plaintiff filed a substitution of attorney with the court. (Pardo Decl. at 27 ¶ 12, Ex. H.) 28 On October 13, 2021, Plaintiff’s new counsel, Michael Adams (“Mr. Adams”), informed the -4- NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE 1 Court that he did not believe there was any settlement between the parties. (Pardo Decl. at ¶ 13, Ex. 2 I.) 3 Over two years later, on January 24, 2024, the Court held an informal discovery conference 4 pursuant to Plaintiff’s request. Mr. Adams failed to appear on Plaintiff’s behalf. (Pardo Decl. at ¶ 5 14, Ex. J.) 6 On January 30, 2024, the Court held a Case Management and Trial Setting Conference. 7 Again, Mr. Adams failed to appear. Accordingly, the Court set an OSC Re: Dismissal of the Entire 8 Action for March 26, 2024. (Pardo Decl. at ¶ 15, Ex. K.) 9 On March 26, 2024, the Court went over the history of the case and decided to lift the stay.1 10 Defendant objected to the Court lifting the stay and requested that the case be dismissed for failure 11 to prosecute. At the hearing, the Court did not believe it had the power to dismiss the case, but 12 informed Defendant that it may bring a motion to dismiss. (Pardo Decl. at ¶ 16, Ex. L.) 13 III. STATUTORY AUTHORITY FOR DISMISSAL 14 Code of Civil Procedure section 583.410 states as follows: 15 (a) The court may in its discretion dismiss an action for delay in prosecution 16 pursuant to this article on its own motion or on motion of the defendant if to do 17 so appears to the court appropriate under the circumstances of the case. 18 (b) Dismissal shall be pursuant to the procedure and in accordance with the criteria 19 prescribed by rules adopted by the Judicial Council. 20 Code of Civil Procedure Section 583.310 states as follows: 21 (a) The court may not dismiss an action pursuant to this article for delay in 22 prosecution except after one of the following conditions has occurred: 23 *** 24 (2) The action is not brought to trial within the following times: 25 *** 26 (B) Two years after the action is commenced against the defendant if the Judicial 27 28 1 Mr. Adams was admonished by the Court for his failure to appear at two prior hearings and for being late to this hearing. -5- NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE 1 Council by rule adopted pursuant to Section 583.410 so prescribes for the court 2 because of the condition of the court calendar or for other reasons affecting the 3 conduct of litigation or the administration of justice. 4 The Judicial Council has adopted a rule extending discretion to California courts to dismiss an action 5 for failure to prosecute. California Rules of Court, rule 3.1340 states as follows: 6 (a) Discretionary dismissal two years after filing The court on its own motion or 7 on motion of the defendant may dismiss an action under Code of Civil Procedure 8 sections 583.410-583.430 for delay in prosecution if the action has not been 9 brought to trial or conditionally settled within two years after the action was 10 commenced against the defendant. . . . (Emphasis added.) 11 To assist courts in making such determinations, the Judicial Council went on to enact California 12 Rules of Court, Rule 3.1342, which states in the pertinent part as follows: 13 (a) Notice of motion 14 A party seeking dismissal of a case under Code of Civil Procedure sections 15 583.410-583.430 must serve and file a notice of motion at least 45 days before the 16 date set for hearing of the motion. The party may, with the memorandum, serve 17 and file a declaration stating facts in support of the motion. The filing of the notice 18 of motion must not preclude the opposing party from further prosecution of the 19 case to bring it to trial. 20 *** 21 (e) Relevant matters 22 In ruling on the motion, the court must consider all matters relevant to a proper 23 determination of the motion, including: 24 (1) The court's file in the case and the declarations and supporting data 25 submitted by the parties and, where applicable, the availability of the 26 moving party and other essential parties for service of process; 27 (2) The diligence in seeking to effect service of process; 28 (3) The extent to which the parties engaged in any settlement negotiations -6- NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE 1 or discussions; 2 (4) The diligence of the parties in pursuing discovery or other pretrial 3 proceedings, including any extraordinary relief sought by either party; 4 (5) The nature and complexity of the case; 5 (6) The law applicable to the case, including the pendency of other litigation 6 under a common set of facts or determinative of the legal or factual issues 7 in the case; 8 (7) The nature of any extensions of time or other delay attributable to either 9 party; 10 (8) The condition of the court's calendar and the availability of an earlier 11 trial date if the matter was ready for trial; 12 (9) Whether the interests of justice are best served by dismissal or trial of 13 the case; and 14 (10) Any other fact or circumstance relevant to a fair determination of the 15 issue. 16 The Court must be guided by the policies set forth in Code of Civil Procedure section 583.130. 17 IV. APPLICATION OF THE FOREGOING FACTORS FAVORS DISMISSAL 18 Before considering the foregoing factors, it is important to note that trial of this matter did 19 not occur within two years of the filing of Plaintiff’s complaint. A review of Plaintiff’s complaint 20 establishes that it was filed on June 15, 2020. To avoid a discretionary motion to dismiss for failure 21 to prosecute, then, Plaintiff was required to bring his action to trial by June 15, 2022. Plaintiff clearly 22 failed to do so. Plaintiff’s failure to do so provides a prerequisite for the present motion. (See, C.C.P. 23 § 583.310.) 24 As such, this Court should now consider the factors identified in Rule 3.1342 above to 25 determine whether the present motion should be granted. Application of those factors to the evidence 26 herein supports a determination that it is proper to dismiss Plaintiff’s action for failure to prosecute. 27 (1) Availability of Defendants and Delay In Service of Complaint 28 The first two factors are related: availability of Defendant for service of process and delay in -7- NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE 1 service. Those two factors are considered jointly. 2 Any consideration of delay in service of the complaint must encompass a consideration 3 of delay in filing the present action; for a plaintiff delays service by delaying the filing of 4 his/her complaint. Here, that delay was substantial. Plaintiff's alleged accident occurred on or 5 about August 18, 2018. Plaintiff delayed filing his complaint for nearly two years, filing only a 6 month before the running of the statute of limitations. During the intervening years, employees 7 seek employment elsewhere, memories fade and details are lost. 8 (2) The Existence of Settlement Discussions Between the Parties 9 This factor also weighs in favor of dismissal. The record is clear that the case settled on 10 March 3, 2021, and Plaintiff filed an unconditional notice of settlement with the Court the next day 11 on March 4, 2021. At no point in the following 7 months did Plaintiff or Mr. Goodroe represent to 12 the Court or Defendant that they were reneging on the settlement. 13 (3) The Diligence of the Parties in Pursuing Discovery 14 Defendant diligently pursued discovery (3 sets of written discovery, subpoenaed pertinent 15 records, and took Plaintiff’s deposition) which assisted in obtaining an agreed upon settlement on 16 March 3, 2021. Plaintiff propounded a basic set of written discovery 8 months after filing his 17 complaint on February 1, 2021, and took no depositions. 18 (4) The Nature and Complexity of the Action 19 The present action arises from an alleged slip and fall that occurred over 5 years ago. Thus, 20 the case is not unduly complex. This fact, however, also weighs in favor of dismissing the action for 21 failure to prosecute. Indeed, which Defendant denies liability, the action is relatively simple and 22 straightforward. There are no complex fact patterns or issues which need to be addressed such that 23 a delay of this magnitude is justified. As a result, the lack of complexity only serves to underscore 24 the fact that the delay here is inexcusable and unjustified. 25 (5) The Law Applicable to this Case and/or Pendency of Other Litigation 26 As discussed above, the law applicable to this case is well known and established. There are 27 no novel legal theories or complicated legal issues that would justify the delay in prosecuting this 28 action. In addition, there are no other pending actions which affect or relate to this matter or justify -8- NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE 1 any delay. 2 (6) The Condition of the Court’s Calendar 3 This case was stayed from March 4, 2021 to March 26, 2024, clogging up the Court’s 4 calendar for over 3 years. The Court should not continue to adjust its calendar for the benefit of 5 Plaintiff – who has refused to honor his settlement with Defendant, failed to take any action to lift 6 the stay and prosecute the matter for over 3 years, and has refused to dismiss the action. 7 (7) The Interests of Justice are Best Served by Dismissal 8 As discussed above, Plaintiff’s alleged accident occurred over 5 years ago. Plaintiff’s failure 9 to diligently prosecute his claim has severely prejudiced Defendant’s ability to obtain discovery, 10 testimony, and evidence necessary to prepare this matter for trial. Furthermore, during the delay 11 occasioned by Plaintiff’s lack of diligence, employees seek employment elsewhere, memories 12 fade, evidence grows stale and witnesses lives outside of litigation move on. Certainly, 13 Plaintiff should not be entitled to benefit from his dilatory conduct by forcing Defendant to 14 proceed to trial in this matter. As a result, the interests of justice favor the granting of this motion. 15 V. PLAINTIFF’S INEXCUSABLE DELAY FAVORS DISMISSAL 16 As explained by the First District Court of Appeal in Wagner v. Rios (1992) 4 Cal.App.4th 17 608, timing is not the only factor for a trial court to consider in deciding whether to grant a motion 18 for discretionary dismissal. “In order to avoid a dismissal for delay in prosecution, the plaintiff must 19 show a reasonable excuse for such delay; once that showing is made, the trial court must consider 20 all pertinent factors, including that under rule 373(e)2 and any prejudice to the defendant for the 21 delay, before deciding to dismiss.” (Id. at 611-612.) The Court went on to note that “where there has 22 been a protracted and unexplained delay in prosecution, the defendant need not make an affirmative 23 showing of prejudice. Prejudice is inferred from the delay itself.” (Id. at 612.) This holding 24 concerning prejudice is consistent with the California Supreme Court precedent on the matter. In 25 Blank v. Kirwan (1985) 39 Cal.3d 311, the Supreme Court rejected the notion that a defendant must 26 show prejudice by a plaintiff’s failure to prosecute, holding that “even if they have not, legislative 27 policy underlying section 583 is not grounded solely in prejudice caused by delay to a defendant. Its 28 2 California Rule of Court 373 is now Rule 3.1342. -9- NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE 1 purpose, too, is to expedite the administration of justice by compelling every person who files an 2 action to prosecute it with promptness and diligence.” (Blank, 39 Cal.3d at 332.) 3 Nearly four years have passed since Plaintiff filed his Complaint and more than three years 4 have passed since the case settled. The case had been stayed since March 4, 2021. It was not until 5 March 26, 2024, during the fourth OSC Re: Dismissal, that the Court decided to lift the stay on its 6 own motion. 7 There is no excuse for this delay. The delay arises entirely from Plaintiff’s failure to honor 8 the unconditional settlement or prosecute the claim. The fact of the matter is Plaintiff never sought 9 to lift the stay despite substituting in a new attorney on October 12, 2021 – such neglect could only 10 arise from case abandonment. 11 VI. CONCLUSION 12 Nearly four years have elapsed since this matter was filed with this Court. Plaintiff has 13 inexcusably failed to prosecute his claim which has severely prejudiced Defendant. As such, 14 Defendant respectfully requests that this Court dismiss this matter with prejudice. 15 DATED: April 9, 2024 CALLAHAN, THOMPSON, SHERMAN & 16 CAUDILL, LLP 17 18 By Lee A. Sherman 19 Shawn I. Pardo Attorneys for Defendant 20 AMAZING WOK 21 22 23 24 25 26 27 28 - 10 - NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE PROOF OF SERVICE 1 STATE OF CALIFORNIA ) 2 ) COUNTY OF ORANGE ) 3 I am employed in the County of Orange, State of California, I am over the age of 18 years and not 4 a party to the within action; my business address is 2601 Main Street, Suite 800, Irvine, California. 5 On this date, April 9, 2024, I served the foregoing document described as: 6 NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE 7 (By United States Mail) I placed the envelope for collection and mailing, following our 8 firm’s ordinary business practices. I am familiar with our firm's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for 9 collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. 10 X (By electronic service) Based on a court order or an agreement of the parties to accept 11 service by electronic transmission, I caused the documents to be sent to the persons at the electronic notification addresses listed below. 12 I declare under penalty of perjury under the laws of the State of California that the above is true 13 and correct. I further declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. 14 Executed on April 9, 2024, at Irvine, California. 15 16 /s/ Zina V. Lomeli ZINA V. LOMELI 17 SERVICE LIST 18 Case Name : Ron Eichman v. Xi Fin Lin, et al. 19 Court : San Mateo County Superior Court Case Number : 20-CIV-02474 20 Michal E. Adams, Esq. Attorney for Plaintiff, 21 Law Offices of Michael E. Adams RON EICHMAN 600 Allerton Street, Suite 200 22 Redwood City, CA 94063 Tel: (650) 599-9463 23 Fax: (650) 599-9785 Email: michael@michaeleadamslaw.com 24 25 26 27 28 -1-