Judge: Anne Hwang, Case: 20STCV28647, Date: 2023-08-16 Tentative Ruling

Case Number: 20STCV28647    Hearing Date: March 4, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

On July 29, 2020, Plaintiff Myranda Isabelle De La Cruz (“Plaintiff”) filed a complaint against Mission Hills Shopping Center, LLC, Angel de Jesus Hernandez, Maritza Hernandez, and Does 1 to 100, inclusive, for injuries sustained on Mission Hills’ property at 10321 Sepulveda Boulevard, Mission Hills, CA 91345 (“Premises”). Plaintiff alleges two causes of action for general negligence and premises liability. Plaintiff alleges in the negligence cause of action that she was struck by a vehicle while on the Premises. In her premises liability cause of action, Plaintiff alleges she tripped on a pothole on the Premises. At the time of her injury, Plaintiff was employed by B. Deirmenjian DDS, Inc. which leased an office on the Premises.

On September 12, 2023, the Court granted Defendant Mission Hills Shopping Center, LLC’s motion for summary judgment on the basis that the lease agreement signed between Mission Hills and B. Deirmenjian DDS, Inc. contained a provision precluding liability. On September 13, 2023, Plaintiff filed an amendment to the complaint adding Express Service, Inc. as Doe 9. On November 17, 2023, Express Service, Inc. filed an answer to the complaint.

Defendant Express Services, Inc. (“Defendant”) now moves to dismiss pursuant to Code of Civil Procedure section 583.210 et seq. Plaintiff opposes and Defendant replies.

LEGAL STANDARD

Motion to Dismiss

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: . . . To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8.” (Code Civ. Proc. § 418.10(a)(3).)

“Notwithstanding Section 1014, no act by a party who makes a motion under this section, including filing an answer, demurrer, or motion to strike constitutes an appearance, unless the court denies the motion made under this section. If the court denies the motion made under this section, the defendant or cross-defendant is not deemed to have generally appeared until entry of the order denying the motion.” (Code Civ. Proc. § 418.10(e)(1).) “Failure to make a motion under this section at the time of filing a demurrer or motion to strike constitutes a waiver of the issues of lack of personal jurisdiction, inadequacy of process, inadequacy of service of process, inconvenient forum, and delay in prosecution.” (Code Civ. Proc. § 418.10(e)(3).)

Three-Year Deadline to Serve

Code of Civil Procedure section 583.210(a) states: “[t]he summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.” “Dismissal is mandatory where a plaintiff fails to serve a defendant within the statutory time limits. (§ 583.250, subd. (b).) The three-year rule applies where the defendant seeking dismissal was served as a Doe defendant named in the original complaint, later amended to show his or her true name. [Citations.] In short, a plaintiff has three years from the date of filing the complaint to identify and serve a Doe defendant.” (Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1061.)

“The time within which service must be made pursuant to this article does not apply if the defendant enters into a stipulation in writing or does another act that constitutes a general appearance in the action.” (Code Civ. Proc. § 583.220.) “To prevent dismissal, any claimed general appearance must have occurred within the mandatory three-year period. An appearance made thereafter does not deprive a defendant of his right to dismissal.” (Brookview Condominium Owners' Assn. v. Heltzer Enterprises-Brookview (1990) 218 Cal.App.3d 502, 509 [defendant did not make a general appearance to preclude dismissal under 583.220 where defendant filed answer and engaged in discovery after the three-year period].)

In computing the time for service, the following condition is excluded: “[s]ervice, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision.” (Code Civ. Proc. § 583.240(d).)

“The nature and purpose of the three-year service of process statute (section 583.210) and the statute of limitations are virtually identical. [Citation.] A statute of limitations serves to promote the public policy of furthering justice by precluding the assertion of stale claims. [Citation.] (Hennessey's Tavern, Inc. v. American Air Filter Co. (1988) 204 Cal.App.3d 1351, 1359.)  “The three-year service requirement is ‘mandatory’ and is ‘not subject to extension, excuse, or exception except as expressly provided by statute.’ (Code of Civ. Proc., § 583.250, subd. (b); [citation].) Further, we are strictly to construe ‘[t]he excuse of impossibility, impracticability, or futility ... in light of the need to give a defendant adequate notice of the action so that the defendant can take necessary steps to preserve evidence.’ [Citation.] (State ex rel. Edelweiss Fund, LLC v. JP Morgan Chase & Co. (2020) 58 Cal.App.5th 1113, 1120.)

“The question of impossibility, impracticability, or futility is best resolved by the trial court, which ‘is in the most advantageous position to evaluate these diverse factual matters in the first instance.’ ” [Citation.] The burden of proof is on the plaintiff, and we will not disturb the trial court's determination unless the plaintiff also proves the trial court abused its discretion. [Citation.] ‘Under that standard, [t]he trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.’ [Citation.] (Id. at 1120–21.)

Failure to discover the identity of a Doe defendant does not toll the statutory period. (Code of Civ. Proc. § 583.240(d); Republic Corp. v. Superior Court (1984) 160 Cal.App.3d 1253, 1255 [dismissal mandatory under previous statute where investigation and development of a previously unknown witness uncovered the party who manufactured the subject water heater]; see also Nelson v. State of California (1982) 139 Cal.App.3d 72, 77 [finding plaintiff failed to demonstrate an “adequate showing of diligence or excuse for delay” because he had ample time to propound discovery to discover the name of a Doe defendant.].)

If service is not made within three years, then “[t]he action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties.” (Code Civ. Proc. § 583.250(a)(2).) “The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” (Code Civ. Proc. § 583.250(b).)

DISCUSSION

Here, Plaintiff filed her complaint on July 29, 2020. Therefore, the three-year deadline to serve was July 29, 2023. Plaintiff did not amend the complaint to substitute Defendant for Doe 9 until September 13, 2023. (Ceglio Decl. ¶ 5, Exh. B.) As a result, Defendant was not served within three years. Therefore, because Defendant did not file its answer or engage in discovery within the three-year period, it did not make a “general appearance” to preclude dismissal. (See Brookview Condominium Owners' Assn., supra, 218 Cal.App.3d at 509.)

Plaintiff has the burden. In opposition, Plaintiff argues the lease agreement that was the basis for summary judgment was withheld by Defendant Mission Hills despite the fact that Plaintiff propounded discovery in November 2020. (Opp., 9) Plaintiff contends the lease agreement was not produced until February 2023. (Id.) Therefore, Plaintiff argues that because of this, service on Defendants was impossible, impracticable, or futile beyond her control since she had no basis to realize that Defendant’s lease agreement with Mission Hills contained a similar provision. (Opp., 7–9.) Though Plaintiff cites law interpreting section 583.340,[1] section 583.240(d) explicitly states: “Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision.”[2] Additionally, the Court rejects Plaintiff’s contention that “[f]ailure to discover relevant facts or evidence” only applies to “futile” in section 583.240(d), in light of the cases cited herein, particularly Republic Corp. v. Superior Court (1984) 160 Cal.App.3d 1253, 1255. (Opp., 7.)

In addition, as Plaintiff contends, she received the lease agreement in February 2023. Therefore, Plaintiff had time to identify and serve Defendant by July 29, 2023. Plaintiff has not set forth applicable authority that the time limit should be tolled where she received discovery within the three-year time limit that could possibly indicate Defendant’s liability. Finally, Plaintiff does not establish that the purported withholding of a lease agreement between two different parties bears on the discovery of Defendant’s identity. Based on the above, the motion to dismiss is granted.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Defendant Express Services, Inc.’s motion to dismiss. The complaint as to moving defendant is dismissed with prejudice.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.