Judge: Armen Tamzarian, Case: 20STCV09886, Date: 2023-10-23 Tentative Ruling

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Case Number: 20STCV09886    Hearing Date: March 12, 2024    Dept: 52

Defendants Dollin Davis and KDB Restaurants, Inc.’s Motion to Quash Service of Process and Dismiss Action

            Defendants Dollin Davis and KDB Restaurants, Inc. move to quash service of summons and to dismiss the action under Code of Civil Procedure section 583.250. 

Code of Civil Procedure section 583.210(a) provides, “The 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.”  Section 583.250 provides: “(a) If service is not made in an action within the time prescribed in this article: (1) The action shall not be further prosecuted and no further proceedings shall be held in the action.  (2) The 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.  (b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” 

Plaintiff Roberto Corleto filed this action on March 11, 2020.  Plaintiff was thus required to serve defendants no later than March 11, 2023.  After numerous efforts to serve defendants and after plaintiff amended the complaint three times, the court entered default judgment against defendants Davis and KDB Restaurants, Inc. on February 17, 2023.  On September 18, 2023, defendants moved to set aside their defaults and the default judgment as void.  On October 23, 2023, the court found plaintiff had not effected proper service of summons on defendants and therefore granted defendants’ motion.  Plaintiff did not serve the summons on defendants by March 11, 2023.

 Plaintiff relies on two statutory exceptions.  First, Code of Civil Procedure section 583.240 provides: “In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which any of the following conditions existed: (a) The defendant was not amenable to the process of the court.”  This exception requires the plaintiff to “demonstrate[] the existence of any circumstance indicating that defendant was not subject to the court’s jurisdiction during some part of the statutory three-year period.”  (Watts v. Crawford (1995) 10 Cal.4th 743, 762–763.)  “[W]hether a party was ‘amenable to process’ would refer to an examination of whether that party was subject to being served under applicable constitutional and statutory provisions.”  (Id. at p. 758.)  That phrase does not mean “a defendant’s reasonable availability, as a practical matter, for service of process.”  (Ibid.)  A defendant is not “amenable to process” when, for example, he or she lacks “the minimum contacts constitutionally necessary to the court’s exercise of personal jurisdiction over her.”  (Id. at p. 762.) 

Plaintiff’s opposition argues defendants were not “amenable to the process of the court” because they “failed to file a single responsive pleading despite having been properly served on numerous occasions.”  (Opp., p. 8.)  That is not what “amenable to the process of the court” means.  And the court already found defendants were never properly served when it granted defendants’ motion to vacate default and default judgment.  The opposition further argues defendants were not “amenable to the process of the Court by refusing to participate in the litigation of the case.”  (Ibid.)  Refusing to participate does not mean they were not subject to the court’s jurisdiction.  Nothing in the record shows any basis for making that finding.

Second, plaintiff argues service “was impossible, impracticable, or futile due to causes beyond the plaintiff’s control.”  (CCP § 583.240(d).)  This exception “ ‘must be construed strictly against the plaintiff.’ ”  (Torrey Hills Community Coalition v. City of San Diego (2010) 186 Cal.App.4th 429, 436 (Torrey Hills).)  The plaintiff “has the burden of showing diligence as a prerequisite to obtaining relief under Code of Civil Procedure section 583.240, subdivision (d).”  (Id. at p. 437.) 

Courts have strictly applied this provision despite harsh results for the plaintiff.  Shipley v. Sugita (1996) 50 Cal.App.4th 320 (Shipley) held, “Attorney misconduct does not excuse a plaintiff’s failure to comply with the mandatory service requirements of section 583.210.”  (Id. at p. 328.)  The court noted, “If the Legislature wishes to extend the circumstances under which mandatory dismissal may be avoided, it may do so.  To date, it has not.”  (Ibid.)  Similarly, that a defendant “may have known of the lawsuit does not excuse plaintiff’s failure to effect timely service.”  (Bishop v. Silva (1991) 234 Cal.App.3d 1317, 1324 (Bishop).) 

            The Court of Appeal has denied relief under this exception in circumstances like this case.  “[A]n erroneous entry of default judgment against the defendant did not toll the period for service of process” where, “[a]lthough the default judgment had made timely service impracticable, the erroneous entry of that judgment was the plaintiff’s fault.”  (Shipley, supra, 50 Cal.App.4th at p. 325.)  “[E]ntry of the default and default judgment against [defendant] tolled the dismissal period only if the claimed impracticability of service was due to causes beyond [plaintiff’s] control.”  (Dale v. ITT Life Ins. Corp. (1989) 207 Cal.App.3d 495, 502.)  The plaintiff “must bear responsibility for his agent’s failure to effect service of process.”  (Ibid.)  The circumstances of obtaining a default judgment (later vacated) based on improper service was “entirely within [plaintiff’s] control.”  (Id. at p. 503.)

Plaintiff argues, “Defendants here made service impracticable and futile due to causes beyond Plaintiff’s control.  Namely, defense counsel, despite having taken part in attempted settlement negotiations, simply ignored and failed to respond to Plaintiff’s multiple communicated requests for defense counsel to accept service on behalf of her clients in this matter.  By refusing to communicate with Plaintiff’s counsel regarding Plaintiff’s good faith efforts to serve Defendants, Defendants made service impracticable.”  (Opp., p. 9.)  An attorney is not required to accept service on behalf of her clients.  (See Estate of Moss (2012) 204 Cal.App.4th 521, 530-533.)  Whether a defendant communicates or responds to the complaint is irrelevant to whether service was possible.  Otherwise, this exception would apply to most (if not all) cases where defendants default.

Moreover, as the court explained in its order granting defendants’ motion for relief from default, the defect was in the summons served, not the manner of serving it.  Plaintiff’s service was invalid solely because the court found defendants “present sufficient evidence that plaintiff only served the initial summons on them.”  (Oct. 23, 2023 minute order, p. 2.)  That summons was ineffective as to Dollin Davis and KDB Restaurants, Inc. because it did not name them as defendants.  (Ibid.)  It was not impossible, impracticable, or futile to serve the correct summons on defendants.  Multiple times, plaintiff served a summons on defendants via an otherwise valid manner.  But that summons was not valid as to these defendants.  All proper service would have required was that those otherwise successful attempts at service simply included the correct summons.  That was entirely within the control of plaintiff and his agents.  Plaintiff presents no evidence that anything outside his control prevented him or his agents from obtaining and serving a proper summons on defendants.  (See Torrey Hills, supra, 186 Cal.App.4th at p. 438 [if clerk did not issue summons, plaintiffs’ “ ‘remedy would have been to apply to the court to require the clerk to perform this responsibility’ ”].)

Finally, plaintiff argues that public policy favors resolving disputes on the merits and the case should not be dismissed for “small procedural technicalities.”  (Opp., p. 4.)  Assuming plaintiff’s numerous defective efforts to serve defendants were improper due to small procedural technicalities, they were entirely within plaintiff’s control.  As discussed above, courts narrowly construe the exception for impossible or impracticable service under Code of Civil Procedure section 583.240(d).  The Court of Appeal has noted that the general policy in favor of resolving disputes on the merits does not apply to this provision.  (Shipley, supra, 50 Cal.App.4th at p. 326 [this exception “must be construed strictly against the plaintiff,” while “the similar exception” to the five-year deadline to a bring case to trial “is construed liberally, consistent with the policy favoring resolution on the merits”].)  Narrowly construing this exception includes finding it does not apply even when service is invalid due to small technicalities.

Plaintiff does not meet his burden of showing any statutory exception under Code of Civil Procedure section 583.240 applies.  Dismissal is therefore mandatory.

Disposition   

Defendants Dollin Davis and KDB Restaurants, Inc.’s motion to dismiss the action under Code of Civil Procedure section 583.250 is granted.  The court hereby dismisses the action against Dollin Davis and KDB Restaurants, Inc., with prejudice.  Defendants shall submit a proposed judgment of dismissal for the court’s signature forthwith.