Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03AS01003
NICHOLSON, Acting P.J.
The trial court dismissed this action for delay in prosecution under the three-year discretionary dismissal statute, and plaintiff Ricardo Echevarria appeals. He asserts the dismissal was an abuse of discretion. We affirm because (1) Echevarria failed to file a timely opposition to the motion to dismiss, thereby admitting the merit of the motion, and (2), even on the merits, dismissal was within the trial court’s discretion under the circumstances of this case.
BACKGROUND
Proceedings in the Superior Court
On February 25, 2003, Echevarria filed a complaint against his former employer, SBC Pacific Bell (Pacific Bell), and his former supervisor, Enrique Velasco. The complaint alleged causes of action for discrimination, retaliation, and defamation. Echevarria was terminated by Pacific Bell in 2001, and the wrongful acts alleged in the complaint occurred in 2001 and 2002.
Pacific Bell and Velasco answered the complaint and removed the case to federal district court. On April 24, 2003, the federal district court remanded the case to the superior court. On the same date, the federal court served notice of the remand on counsel for each party and on the superior court.
Thirty months after the case was remanded to the superior court, Jeff Jennings, the legal assistant to counsel for Echevarria, Martin F. Jennings, Jr., sent a letter to the superior court inquiring concerning the status of the case. Apparently, the superior court had not put the case back on active status when it was remanded. In another letter received by the court on November 10, 2005, the legal assistant stated: “Due to an ongoing medical condition of Martin Jennings’ associate our caseload has been overwhelming. Due to this fact, and an extremely patient client, we never realized that the Sacramento County Superior Court never assigned this case a trial setting date or communicated with the parties in any way concerning this case.”
On November 21, 2005, the superior court sent the parties a notice for a case management conference to be held on January 12, 2006. The defendants filed a case management statement on December 28, 2005, and Echevarria followed with a case management statement on January 3, 2006. After a case management conference, the court referred the case to a trial setting conference to be held on August 7, 2006.
On May 4, 2006, the defendants filed a motion to dismiss for delay in prosecution pursuant to Code of Civil Procedure section 583.410. Echevarria’s opposition to the motion to dismiss was due on May 19, 2006, but it was not filed until May 31, 2006. It offered no explanation for the untimely filing.
Hereafter, unspecified code citations are to the Code of Civil Procedure.
The superior court issued a tentative ruling granting the motion to dismiss. It determined that Echevarria’s opposition was untimely and no good cause was shown for the untimeliness, so the court ordered the opposition stricken. The motion was therefore unopposed and was granted. The tentative ruling also concluded that, even considering the opposition, the complaint would be dismissed, considering the appropriate factors pursuant to former California Rules of Court, rule 373(e) (now rule 3.1342(e)).
Before the hearing on the motion to dismiss, on June 19, 2006, Echevarria filed a request to dismiss Velasco from the litigation. The dismissal was entered by the clerk as requested, leaving Pacific Bell as the lone defendant. After the hearing, the trial court took the matter under submission.
On July 5, 2006, the trial court issued its ruling on the submitted matter. It confirmed its tentative ruling and dismissed the action for delay in prosecution. Judgment of dismissal was entered.
Discovery Efforts During Delay
Between the time the case was remanded by the federal court in April 2003, and the time Jennings’s legal assistant inquired concerning the status of the case in November 2005, the only discovery initiated by Echevarria was to propound a set of form interrogatories and a request for production of documents, which was sent to Pacific Bell in September 2004. During that 30-month period, Echevarria failed to pursue discovery other than the one instance of interrogatories and production of documents or to communicate with the court concerning moving the case along.
Meanwhile, Pacific Bell made several discovery requests, to which Echevarria responded, although there were some disagreements as to whether Echevarria had provided sufficient information. Pacific Bell sent several notices setting a time and place to take Echevarria’s deposition but, in each instance, cancelled the deposition, ostensibly because Echevarria had not provided sufficient information upon which to base the deposition questioning.
DISCUSSION
I
Failure to File a Timely Opposition
The trial court’s granting of the unopposed motion to dismiss was proper because the failure to oppose a motion may be considered an admission of the motion’s merit.
California Rules of Court, rule 3.1342(b) states, in pertinent part: “The 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.” (Text unchanged from former rule 373(b).)
Although Pacific Bell raised, in its respondent’s brief, this issue concerning the admission engendered in the failure to oppose the motion to dismiss in a timely manner, Echevarria makes no attempt to argue to the contrary. Therefore, we conclude that Echevarria’s failure to file a timely opposition to the motion to dismiss establishes that the motion was well-founded and that the trial court did not err in granting the motion and dismissing the action.
II
Failure to Prosecute
Even though the conclusion in part I of the Discussion is sufficient to affirm, without more, we will also consider the merits of the motion to dismiss, as did the trial court.
A. Excusable Delay
“The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.” (§ 583.410, subd. (a).) The court may dismiss if the action is not brought to trial within three years after filing. (§ 583.420, subd. (a)(2)(A).)
A motion to dismiss for delay in prosecution is “addressed to the trial court’s sound discretion, and its determination will not be reversed absent a showing of manifest abuse resulting in a miscarriage of justice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.) Such abuse of discretion is generally considered to be demonstrated when the trial court has exceeded the bounds of reason. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) We must presume the trial court’s order was correct, and it is the plaintiff's burden to overcome that presumption and establish a clear abuse of discretion. (Blank v. Kirwan, supra, 39 Cal.3d at p. 331; Trailmobile, Inc. v. Superior Court (1989) 210 Cal.App.3d 1451, 1455.)
“It is true, as plaintiffs point out, that the policy favoring trial on the merits is generally preferred over termination of a case on procedural grounds. (§ 583.130.) ‘But that principle cannot be indiscriminately applied so as to render impotent the provisions of section 583.420. The statutory provisions permitting discretionary dismissal when the plaintiff is not diligent in prosecuting the action serve the dual purpose of discouraging stale claims and expediting the administration of justice. [Citations.]’ (Trailmobile, Inc. v. Superior Court, supra, 210 Cal.App.3d at p. 1455.) Thus, the policy favoring resolution on the merits will be applied only after the plaintiff has made ‘some showing of excusable delay’ (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 562-563) and has demonstrated dismissal would effect a miscarriage of justice. (Dubois v. Corroon & Black Corp. (1993) 12 Cal.App.4th 1689, 1695.)” (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 698; see also Wagner v. Rios (1992) 4 Cal.App.4th 608, 611-612.)
Here, Echevarria fails to make a showing of excusable delay, notwithstanding his proffered excuses.
Propounding one set of interrogatories and requesting some documents over the course of 30 months does not constitute active prosecution of the action sufficient to overcome the trial court’s discretionary dismissal. (See Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443 (Howard).) In Howard, the trial court granted a motion to dismiss for delay in prosecution because, among other reasons, the action had been pending more than three years. The Supreme Court found the trial court did not abuse its discretion: “We note in this case that there was a lapse of three years and seven months between the time of the filing of the complaint and the filing of the first at-issue memorandum -- a period during which, except for the propounding of form interrogatories and a single request for documents, the case lay dormant. Nor is there any evidence in the record of active settlement negotiations or delay by defendant.” (Ibid.)
The same is true here. The trial court’s ruling was, therefore, within the bounds of reason.
B. Echevarria’s Contentions
Echevarria contends that (1) precedent requires reversal, (2) the delay was the superior court’s fault, (3) the delay was Pacific Bell’s fault, (4) the court applied the wrong level of scrutiny when deciding the motion, and (5) the court could have applied less harsh alternatives. Each contention is without merit.
1. Precedent
Echevarria contends that the decision in Reid v. Balter (1993) 14 Cal.App.4th 1186 requires reversal here. However, that case involved whether denying a motion to dismiss for delay in prosecution caused prejudice. It therefore has no persuasive effect here because (1) Pacific Bell’s motion to dismiss was granted, not denied, and we only look to whether it was an abuse of discretion and (2), because we conclude that Echevarria has not established that his delay was excusable, we need not consider prejudice. (Howard, supra, 10 Cal.4th at pp. 443-444.)
2. Superior Court
Echevarria asserts that his delay is the fault of the superior court for not putting the action back on active status after the remand from the federal court. He contends that his attorney “reasonably relied on the Sacramento County Superior Court to fulfill its obligation under the Trial Court Delay Reduction Act, which requires active judicial management to aggressively monitor and manage litigation from the filing of the first pleading until the final disposition.”
Echevarria provides no authority for the proposition that the court’s inaction excuses his own inaction. Instead, the law is to the contrary. The plaintiff’s duty with respect to bringing an action to trial in a timely manner includes monitoring the court to guard against errors in filing, scheduling, and calendaring. (Tamburina v. Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 336.)
3. Pacific Bell
Echevarria attempts to blame Pacific Bell for the delay. He states: “Though [Pacific Bell] knew that the case had been remanded in April 2003 they did nothing to determine why no case management conference had been set, did nothing to inquire or alert the court of the problem and were apparently disinterested until receiving the Notice of Case Management Conference.”
Very simply, a defendant has no duty to insure that the case is brought to trial. (Parlen v. Golden State Sanwa Bank (1987) 194 Cal.App.3d 906, 913.) Nothing Pacific Bell did can be construed as preventing Echevarria from bringing the action to trial.
4. Level of Scrutiny
Claiming that there is a heightened level of diligence required when the five-year dismissal statute is involved as compared to the level of diligence required when the three-year statute is involved, Echevarria claims the trial court erred by applying the standard related to the five-year statute. We need not consider Echevarria’s novel assertion that there is a heightened standard applicable to the five-year statute or examine the long list of cases Echevarria cites with regard to this assertion because, as noted in the ruling on the submitted matter, the court, in deciding whether to dismiss, considered the factors found in former California Rules of Court, rule 373(e) (now rule 3.1342(e)). That is the level of scrutiny required. (Howard, supra, 10 Cal.4th at p. 441.)
5. Less Harsh Alternatives
Echevarria argues that the trial court had to impose lesser sanctions than dismissal, if any sanction at all. He claims that the court should have considered “monetary sanctions, ordering some kind of time table to complete discovery, conditionally denying the motion to dismiss, and the like; if he [sic; read ‘the court’] did not consider alternatives, then the court abused its discretion by not doing so because the court’s authority was never challenged and no court orders regarding discovery or scheduling were issued that would give rise for the need to vindicate the court’s authority.”
Echevarria provides no authority for the proposition that, even if the circumstances justify dismissal (as we have found), the court still must consider whether sanctions short of dismissal would have been adequate. As noted above, the dual purposes of the discretionary dismissal statute are to “discourag[e] stale claims and expedit[e] the administration of justice. [Citations.]” (Trailmobile, Inc. v. Superior Court, supra, 210 Cal.App.3d at p. 1455.) Neither of these purposes would be served by the lesser sanctions that Echevarria proposes for the first time on appeal.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendant. (Cal. Rules of Court, rule 8.276(a).)
We concur: RAYE , J., MORRISON, J.