Kailie Armstrong vs. Lotus Investment Partners LLC

Legal Standard

California Rules of Court, Rule 3.1340 allows a court to “dismiss an action under Code of Civil Procedure sections 583.410-583.430 for delay in prosecution if the action has

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not been brought to trial or conditionally settled within two years after the action was commenced against the defendant.” Under California Code of Civil Procedure section 583.410, on the motion of the defendant, the court may dismiss an action for delay in prosecution “if to do so appears to the court appropriate under the circumstances of the case.” California Code of Civil Procedure section 583.420, subdivision (a)(2)(A) further provides the Court may not dismiss an action for delay in prosecution unless the action is not brought to trial within three years after the action is commenced against the defendant. Plaintiff filed her action on May 6, 2021, and therefore the three-year period elapsed on May 6, 2024. Thus, the Court may, in its discretion, dismiss the action since more than three years has elapsed since Defendants were served.

When considering whether to dismiss an action for delay in prosecution, California Rules of Court, rule 3.1342(e) sets forth a number of matters that are relevant to the proper determination of the motion, including the diligence of the parties in pursuing discovery, the nature and complexity of the case, the extent to which the parties engaged in any settlement discussions, and any other fact or circumstance relevant to a fair determination of the issue. In making its determination, the Court is guided by Code of Civil Procedure section 583.130, which states, “the policy favoring trial or other disposition of an action on the merits [is] generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter.”

Discussion

Defendant argues discretionary dismissal is warranted because “Plaintiff has abandoned this case.” (Memorandum at p 1:3.) Defendant further argues that, although four years have passed, the case is not at issue because Plaintiff failed to secure a default against Defendants Chancy and Hunter, the alleged shooters. (O’Brian-Kovari Declaration (“O’Brian-Kovari Decl.”), ¶ 5.) Defendants contends that Plaintiff has failed to appear since September 2023 and failed to attend the previous two case management conferences, resulting in the Court setting an order to show cause. (Id., ¶¶ 6-7, Exs.

A and B.) Plaintiff has not propounded written discovery since November 2021, the most recent deposition that Plaintiff took or noticed was October 9, 2023, and Plaintiff has not completed her own deposition. (Id., ¶¶ 8-10.) Additionally, Plaintiff has incurred more than $17,000 in discovery sanctions as well as evidentiary sanctions as a result of violating the Court’s discovery orders. (Id., ¶¶ 12-13.) Defendant argues that the delay has prejudiced him, because he was delayed in his ability to file a dispositive motion due to Plaintiff’s discovery failures, witnesses have left his employ during the litigation and may be difficult to locate, and his memory of the incident and surrounding circumstances has significantly faded. (Opposition at 5:24-28; O’Brian-Kovari Decl., ¶ 17.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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In opposition, Plaintiff filed a declaration averring that she has been abandoned by her attorney, Mr. Collup, who is no longer eligible to practice law in California. (Declaration of Kailie Armstrong (“Armstrong Decl.”), ¶ 2.) Plaintiff declares that she has not personally spoken with or received any communications from her attorney since August 2024, but she spoke with his office assistant in early 2025 who told her that her counsel of out on sick leave and she should be patient. (Id., ¶¶5-6.) Plaintiff declares that her “inexperience in these matters, misplaced trust in Mr. Collup, unfamiliarity with the Court system, and fact that Mr. Collup’s limited communications with me lead me on, caused me delay in realizing I needed help from someone other than him.” (Id., ¶ 6.)

Rule 3.1342(e) requires the Court to consider all matters relevant to a determination, including among other factors:

(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.

Although some factors weigh in Defendant’s favor, such as Defendant’s diligence in pursuing discovery and the nature and complexity of the case, the Court concludes discretionary dismissal is not in the interests of justice. Plaintiff’s declaration provides evidence that her ability to prosecute the case has been severely impeded by her counsel’s failures to communicate with her regarding his ability to pursue the matter.

While Defendant argues that he has been prejudiced by Plaintiff’s delay in prosecution,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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the Court notes that moving Defendant was able to file a motion for summary judgment on June 26, 2025. Defendant also generally contends that it may be difficult to locate witnesses, but he fails to identify any specific individuals who he is unable to locate. Finally, although Defendant’s recollection of the events may have faded, the Court notes that parties are generally permit to pursue their action so long as the case is brought to trial within 5 years. (Code of Civ. Proc., § 583.310; Munoz v.

City of Tracy (2015) 238 Cal.App.4th 354, 358 [“While the goals of the five-year limit are somewhat analogous to those underlying statutes of limitation, the five-year limit involves policy considerations that are somewhat less crucial because once an action has been filed defendants can take steps to protect their interests”].) Thus, Defendant’s fading recollection alone is not an adequate reason to grant the motion. Therefore, the Court concludes that Defendant has not shown that he will be prejudiced if the motion is denied.

Disposition

For the foregoing reasons, Defendant’s motion to dismiss is DENIED.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

NOTICE:

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To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

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SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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