ADR Review Hearing; Motion to Dismiss; Order to Show Cause re: Payment of Arbitration Fees
“As juries are instructed in CACI No. 370, the plaintiff must prove that the defendant received money ‘intended to be used for the benefit of [the plaintiff],’ that the money was not used
for the plaintiff’s benefit, and that the defendant has not given the money to the plaintiff.” (Ibid.) Plaintiff alleges Defendant used a debit card issued and entrusted to the Insured to purchase goods and services for her own benefit rather than using it for the benefit of the Insured. (FAC ¶ 10.) Plaintiff further alleges the funds did not belong to Defendant and while the Insured demanded repayment, Defendant refused to repay the funds. (FAC ¶¶ 10, 11.)
These allegations are sufficient at the pleading stage. Tentative Ruling: The Court OVERRULES Defendant’s demurrer to the second cause of action. Defendant to give notice.
16 Ingram vs. Silver 1. ADR Review Hearing 2. Motion to Dismiss 2020-01134343 3. Order to Show Cause re: Payment of Arbitration Fees
Defendant moves to dismiss this action for failure to prosecute pursuant to Code of Civil Procedure sections 583.410 and 583.420, subdivision (a)(2)(B). Defendant alternatively moves to vacate this court’s 3/28/2022 order compelling arbitration for failure to prosecute pursuant to Code of Civil Procedure section 1287.97. Code of Civil Procedure section 583.410 provides: (a) 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. (b) Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.
Code of Civil Procedure section 583.420, subdivision (a)(2)(B) provides: “The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following
conditions has occurred: . . . [¶] (2) The action is not brought to trial within the following times: . . . [¶] (B) Two years after the action is commenced against the defendant if the Judicial Council by rule adopted pursuant to Section 583.410 so prescribes for the court because of the condition of the court calendar or for other reasons affecting the conduct of litigation or the administration of justice.” “In ruling on the 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
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(10) Any other fact or circumstance relevant to a fair determination of the issue.” (Cal. Rules of Ct., rule 3.1342(e).) “The court must be guided by the policies set forth in Code of Civil Procedure section 583.130.” (Cal. Rules of Ct., rule 3.1342(e).) Code of Civil Procedure section 583.130 provides:
It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition. Except as otherwise provided by statute or by rule of court adopted pursuant to statute, the policy favoring the right of parties to make stipulations in their own interests and the policy favoring trial or other disposition of an action on the merits are 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.
However, where a plaintiff demonstrates inexcusable delay—such as failing to pay required fees or initiate proceedings in arbitration—the balance weighs heavily in favor of dismissal (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 442-444 [emphasizing that prolonged inaction prejudices defendants through evidentiary deterioration and increased costs].)
Here, Plaintiffs commenced this action against Defendant on 2/25/2020. On 3/28/2022, the court granted Plaintiffs’ motion to compel arbitration, which was filed on 11/16/21. (Schuler Decl., ¶ 3, Ex. A; ROA 132.) Defendant subsequently filed a Motion for Summary Judgment in arbitration. (Schuler Decl., ¶ 4, Ex. B.) On 12/11/24 and 2/26/25, Judicate West issued billing statements for Invoice No. 646695 indicating $9,320.00 was owed by each side as a retainer for the arbitrator. (Schuler Decl., ¶ 5, Ex.
C.) On 9/11/25, Defendant prepared a check for his share and notified opposing counsel of readiness to pay upon confirmation of Plaintiffs' payment. (Schuler Decl., ¶ 6, Ex. D.) Pursuant to the 3/20/25 Arbitration Readiness Conference Order, the Arbitrator refused to proceed until both parties paid their fees. (Schuler Decl., ¶7, Ex. E.) On 9/22/25, at this court’s ADR Review Hearing, Defendant advised the court of Defendant's tendered fees and check; Plaintiffs requested continuance. The court issued an OSC re: Payment of Arbitration Fees for 1/26/26. (Schuler Decl., ¶ 9, Ex.
F.) On 10/30/25, Defendant advised Judicate West of its pending Motion for Summary Judgment, the status of arbitration fee payment, and
Defendant’s willingness to proceed with arbitration (Schuler Decl., ¶ 9, Ex. G.) Plaintiffs have failed to pay their share of the arbitration fees. (Schuler Decl., ¶ 8.) At the 1/26/26 OSC, Plaintiffs confirmed to the court that they had not paid the arbitration fees. Plaintiffs also informed the court of their counsel’s pending motion to be relieved. The court continued the OSC and the instant motion to 6/1/26, and advanced the motion to be relieved as counsel to 4/27/26. (ROA 262.) The court subsequently granted the motion to be relieved as counsel. (ROA 265.) The
Plaintiffs’ counsel filed a Proof of Service showing counsel served Plaintiff with a notice of ruling re motion to relieved as counsel on 4/30/26. (ROA 269.) The evidence establishes Plaintiffs' failure to pay arbitration fees and advance the matter for over five years since filing and more than three years since the order compelling arbitration constitutes inexcusable delay. This delay has resulted in prejudice to Defendant through faded evidence, prolonged uncertainty, and unnecessary expenditure of resources.
Plaintiffs have failed to oppose the motion. “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.” (Cal. Rules of Ct., rule 3.1342(b).)
Tentative Ruling: Defendant Gerald N. Silver’s unopposed Motion to Dismiss is GRANTED.
Defendant to give notice.
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