Opinion
B331451
08-09-2024
MIGUEL MARTINEZ, Plaintiff and Appellant, v. IRAJ MOSBAT, et al., Defendants and Respondents.
Law Offices of D. Hess Panah, Hesam Dean Yazdanpanah for Plaintiff and Appellant Finch Tetzlaff and David W. Tetzlaff for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 20STCV23235 Serena R. Murillo, John P. Doyle, Judges. Affirmed.
Law Offices of D. Hess Panah, Hesam Dean Yazdanpanah for Plaintiff and Appellant
Finch Tetzlaff and David W. Tetzlaff for Defendants and Respondents.
WILEY, J.
On June 27, 2018, Iraj Mosbat crashed into Miguel Martinez's car. Although Martinez filed a complaint for damages on June 19, 2020, Martinez did not serve Mosbat until October 18, 2022, over two years later. On February 9, 2023, Mosbat moved for dismissal, which the trial court granted on April 6, 2023. Martinez claims the trial court abused its discretion. We affirm. Citations are to the Code of Civil Procedure.
I
Both in the trial court and in his brief to this court, Mosbat contends he showed Martinez his driver's license at the scene of the accident on June 27, 2018. Martinez's opening brief did not dispute this. Indeed, in that opening brief, and with our emphasis, Martinez asserts a "skip trace was generated using the address exchanged at the scene of the incident and defendant's information on his driver[']s license." Martinez filed no reply brief in our court.
Mosbat's license listed his home address on Tapia Drive in Malibu, California.
On November 29, 2021, nearly a year and a half after filing suit, Martinez ordered a skip trace, which generated two "most current" addresses for Mosbat: one on Cedar Street in Bellflower, California, and one on Tapia Drive in Malibu, California. The report also said the Cedar Drive address was current through December 2021, while the Tapia address was current only through November 2021. Martinez attempted to serve Mosbat 17 times at the Cedar Street address between December 2021 and September 2022, with an eight month gap in attempted service between January and September in which Martinez made no service attempts. During this interval, Martinez did not attempt service at the Tapia Drive address. At oral argument, counsel attempted to explain this gap, but no information in the record addresses this point.
On the 17th attempt, the building manager told the process server Mosbat did not reside at the Cedar Street address. Martinez served Mosbat on Tapia Drive on October 18, 2022: two years and four months after Martinez filed his complaint.
II
The trial court acted within its discretion by dismissing the case because Martinez was not reasonably diligent in serving Mosbat. (See § 583.130 [state policy is "a plaintiff shall proceed with reasonable diligence in the prosecution of an action"].)
As the parties agree, our review is deferential.
Martinez claims the trial court abused its discretion and exceeded the bounds of reason. This argument is incorrect. The trial court may dismiss an action for delay in prosecution if "[s]ervice is not made within two years after the action is commenced against the defendant." (§ 583.420, subd. (a)(1).) Martinez took two years and four months. That was four months too long. The trial court had a sound basis for its action.
The Tapia Drive address was no secret. Mosbat revealed the information at the accident scene. The skip trace informed Martinez the Tapia Drive address was one of two current addresses for Mosbat. Yet Martinez waited for more than two years after filing the complaint to try the Tapia Drive address. Martinez did not act with reasonable diligence.
Martinez cites inapposite cases.
Woolfson is distinguishable on the law and the facts. In Woolfson, the plaintiff's attorney was unable to consult with the client due to the client's unavoidable travel to England. (Woolfson v. Personal Travel Service, Inc. (1971) 3 Cal.3d 909, 912, fn. 2.) Martinez has offered no evidence about an inability to consult with his attorney. Moreover, the court in Woolfson remanded because of a change in law allowing trial courts to exercise their discretion, which the trial court had not done. (Id. at pp. 912-913.)
In Cubit v. Ridgecrest Community Hospital (1987) 194 Cal.App.3d 1552 , the plaintiff did not have the evidence that constituted the main reason for complaint. (Id. at pp. 1567-1569.) Martinez, however, engaged in discovery. His problem was not that he lacked information. The problem was he did not act on the information he had.
In United Farm Workers Nat. Union v. Internat. Brotherhood of Teamsters (1978) 87 Cal.App.3d 225, the court reversed because it was not clear the trial court had understood the bounds of its discretion in determining the motion to dismiss. (Id. at pp. 237-238.) This holding is not on point, for Martinez argues the court misapplied rather than misunderstood its discretion.
Martinez has not explained why he waited for more than a year after filing to order the first skip trace. Nor does information in the record rationalize the eight-month gap between January 8, 2022 and September 19, 2022, when Martinez made no attempt at service at all.
Martinez makes several faulty arguments.
He claims changes in his counsel's staffing delayed service efforts, which forced his counsel's firm to hire an attorney solely for the purpose of ensuring service. This is no justification for deciding against trying to serve Mosbat where Mosbat said he lived.
Martinez claims Mosbat's filing of an answer, engaging in discovery, and participating in setting a trial date precluded dismissal. The decision in Scarzella v. DeMers is to the contrary. In that case, the defendant brought a successful dismissal motion after filing an answer and participating in discovery. (Scarzella v. DeMers (1993) 17 Cal.App.4th 1762, 1771 [declining to reverse trial court's application of its properly applied discretion under the statute].) The result was sound. Defendants are entitled to establish parallel lines of defense.
At oral argument, counsel raised additional grounds to excuse the delay, but we do not consider information in neither the briefing nor the record.
The issue of prejudice is inessential. (Putnam v. Clague (1992) 3 Cal.App.4th 542, 549.) The plaintiff must show the delay was excusable. A showing of prejudice by the defendant is not mandatory. (Hilliard v. Lobley (1989) 216 Cal.App.3d 638, 642 ["If such a showing is not made, the court may dismiss the action in its discretion even if defendant fails to establish actual prejudice"].)
Martinez did not prosecute his case diligently. Diligent prosecution serves the cause of justice. Pointlessly allowing time to pass degrades evidence. (E.g., Yee v. Panrox Internat. (USA), Inc. (2023) 97 Cal.App.5th 470, 481.) This factor operates disproportionately: diligent plaintiffs can collect and preserve favorable evidence because they know they intend to sue, but unserved defendants lack notice to do likewise. This disproportionate situation leads courts to construe the statute strictly. (A. Groppe &Sons Glass Co., Inc. v. Fireman's Fund Ins. Co. (1991) 232 Cal.App.3d 220, 224.)
It is preferable to decide matters when the trail is fresh. Over four years elapsed between the time of the accident and service on Mosbat. In discovery, Martinez himself could not recall facts about the accident: the time of day, his destination, where his journey originated, and what he was doing at the time. He could not recall witnesses, statements, or reports about the accident. His counsel claimed at oral argument Martinez later amended these responses, but again, we rely only on information in the record. On that record, Martinez's delay was inexcusable.
In his opening brief, Martinez argues Mosbat's supposed failure to file a brief in this court represents a concession that Martinez's appeal has merit. Mosbat, however, filed his respondent's brief with us in a timely fashion, albeit only after Martinez filed his opening brief. This was proper.
DISPOSITION
We affirm and award costs to the respondents.
We concur: STRATTON, P. J. VIRAMONTES, J.