Judge: Audra Mori, Case: 19STCV02761, Date: 2023-01-26 Tentative Ruling

Case Number: 19STCV02761    Hearing Date: January 26, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

On January 28, 2019, Plaintiff Maria Mendoza filed this action against defendants Jorge M. Blanco-Palma, Ajit Mohan, and Prem Mohan for damages arising from a multi-vehicle accident.  On December 16, 2019, this matter was consolidated with Case No. 19STCV04154, which was filed by Norma Isabel Larroza (“Larroza”) against Jorge M. Blanco-Palma, Ajit Mohan, and Prem Mohan for damages arising from the same accident.

At this time, defendant Jorge M. Blanco-Palma (“Palma”) moves to dismiss Mendoza’s action pursuant to CCP §§ 583.210, 583.250.  Mendoza opposes the motion, and Palma filed a reply. 

On November 29, 2022, Mendoza filed proof of service showing Palma was personally served with the Summons and Complaint on April 1, 2022, which was more than three years after the filing of the action.  Palma asserts that while he previously made an appearance in this action as a cross-defendant, Palma has not appeared as a defendant.  Palma denies that he was properly served with the summons and complaint as alleged in the November 29, 2022 proof of service, and contends that even if he was, Mendoza’s action against him must be dismissed because he was not served within three years of the filing of this action.  Further, Palma contends that the proof of service was not filed within the required 60 days after the documents were allegedly served on Palma. 

In opposition, Mendoza argues that Palma’s motion is moot because Palma made a general appearance in this action on March 22, 2021, because after this action was consolidated with 19STCV04154, Palma filed an answer to a cross-complaint, which constitutes a general appearance.  Mendoza contends after Palma answered the cross-complaint, Mendoza was served with the summons and complaint on April 1, 2021.  Mendoza further asserts that Palma filed an answer to Larroza’s complaint on July 29, 2022, which Mendoza contends constituted another general appearance.  Mendoza argues that Palma failed to move to quash service of the summons.

In reply, Palma contends that answering a cross-complaint is not a general appearance sufficient to confer jurisdiction over Palma in Mendoza’s primary action.  Palma contends that Mendoza’s complaint against him should be dismissed, and that Mendoza fails to prove proper service of the summons and complaint. 

2. Motion to Dismiss

CCP § 583.210 provides:

(a) 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.

(b) Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant.

Further, CCP § 583.250 states:

(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.

“Once the statutory period for either service of process or commencement of trial has run, the action cannot be further prosecuted and must be dismissed. (CCP §§ 583.250, 583.360.)  However, “[t]he 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.”  (CCP § 583.220, emphasis added.) 

“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; see also Mannesmann DeMag, Ltd. v. Superior Court (1985) 172 Cal.App.3d 1118, 1125 [even in assuming that appearance of counsel at taking of deposition of witness, after running of three year statute, amounted to general appearance, such appearance after expiration of three-year statute did not affect motion to dismiss], and Wenzoski v. Citicorp (N.D. Cal. 480 F.Supp. 1056, 1061 [In order to avoid mandatory dismissal general appearance must be made within three-year period].) 

A general appearance is made when a defendant either enters an appearance in an action without limiting the purpose of the appearance or when the defendant asks for relief on the merits and thus recognizes the authority of the court to proceed.  (See Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1147.)  A general appearance in an action waives any objection to personal jurisdiction, and the defendant submits to the jurisdiction of the court.  (See, e.g., Greener, 6 Cal.4th at 1036-37.)  In general, propounding discovery without challenging the court’s jurisdiction constitutes a general appearance.  (Factor Health Management v. Superior Court (2005) 132 Cal. App. 4th 246, 250, citing Roy v. Superior Court (2005) 127 Cal.App.4th 337, 341.)

However, “an ‘action’ on a complaint should be distinguished from an ‘action’ on a related cross-complaint and that a general appearance in one such action will not necessarily constitute a general appearance in the other. A complaint and a cross-complaint in a single lawsuit are for most purposes treated as independent actions.”  (Botsford v. Pascoe (1979) 94 Cal.App.3d 62, 67 [respondents did not make general appearance in action on complaint within meaning of former CCP § 581a solely by virtue of their activities with respond to cross-complaint against them]; see also Glenwood Homeowners Assn., Inc. v. Prosher Development Ltd. (1980) 111 Cal.App.3d 1002, 1004-06 [cross-defendant’s answer to cross-complaint did not constitute appearance to complaint such that plaintiff could serve complaint on cross-defendant by mail].)  “Section 583.220 applies to a cross-defendant only to the extent the cross-defendant has made a general appearance for the purposes of the cross-complaint.”  (CCP § 583.220, Law Revision Commission Comments.) 

Here, Mendoza filed her complaint against Palma on January 28, 2019.  Thereafter, Mendoza did not file proof of service of the summons and complaint on Palma until November 29, 2022, which alleges that Palma was personally served with the summons and complaint on April 1, 2022.  This date was more than three years after Mendoza filed her complaint. 

Mendoza contends, however, that the requirements of CCP § 583.220 do not apply to her because Palma made a general appearance in this action.  In particular, Mendoza contends that Palma made a general appearance by filing an answer to Ajit Mohan’s and Prem Mohan’s cross-complaint on March 22, 2021, which was before this action was three years old.  Mendoza also contends that the following actions, which occurred after the action was three years old, constitute a general appearance: (1) Palma served extensive written discovery on Mendoza and the other parties in this action on March 10, 2022, and (2) July 29, 2022, defendant filed an answer to Larroza’s complaint on July 29, 2022. 

As to Palma’s filing an answer to Ajit Mohan’s and Prem Mohan’s cross-complaint, Mendoza fails to cite any authority holding that such constitutes a general appearance relating to Mendoza’s complaint.  Rather, it has been held that an action on a complaint is distinguished from an action on a cross-complaint, and an appearance in one does not constitute a general appearance in the other.  (Botsford, 94 Cal.App.3d at 67; see also Glenwood Homeowners Assn., Inc., 111 Cal.App.3d at 1004-06.)  Ajit Mohan’s and Prem Mohan’s cross-complaint against Palma is treated as an independent action from Mendoza’s complaint against Palma.  (Botsford, 94 Cal.App.3d at 67.)  Indeed, Palma was not required to take any action on Mendoza’s complaint until Palma was served with such.  Mendoza does not otherwise provide any evidence or argument showing that Palma participated in the action with respect to Plaintiff’s complaint prior to the expiration of the three-year period.  Palma cannot be said to have made a general appearance based solely on his actions with respect to Ajit Mohan’s and Prem Mohan’s cross-complaint.  (Id. at 67-68.) 

As to Palma propounding discovery on Mendoza and the other parties on March 10, 2022, and Palma’s filing an answer to Larroza’s complaint on July 29, 2022, even in assuming that these actions constituted a general appearance by Mendoza, the issue is that each of these actions occurred after the expiration of the mandatory three-year period.  To prevent dismissal, Palma must have made any claimed general appearance within the three-year period.  (Brookview Condominium Owners' Assn., 218 Cal.App.3d at 509; see also Mannesmann DeMag, Ltd., 172 Cal.App.3d at 1125.)  Accordingly, Plaintiff cannot rely on either of these actions in asserting that Palma made a general appearance in this matter and arguing that CCP § 583.220’s mandatory requirements do not apply. 

Additionally, to the extent that Mendoza contends that her summons and complaint was emailed to Palma’s former counsel on June 5, 2019, Mendoza does not submit any evidence suggesting that Palma’s former counsel agreed or was authorized to accept service of the summons on Palma’s behalf.  Mendoza does not contend that such email service was proper.  Instead, Mendoza states that Palma’s former defense counsel was informed that the documents were out for personal service.  (Opp. Mendez Decl. ¶ 1.)  This statement implicitly acknowledges that the emailing of documents did not supplant the need for the personal service.  To the extent that Mendoza argues that there is an estoppel argument based on the emailing of summons and complaint (Opp. at p. 7:5-7.), Mendoza fails to cite any authority showing that Palma is estopped from moving to dismiss her complaint under these circumstances.   Palma’s then counsel had no obligation to respond to the summons and complaint until such documents were properly served.

            Based on the foregoing, Mendoza fails to show that Palma made a general appearance relating to her complaint within the mandatory three-year period.[1]  Therefore, Mendoza’s action must be dismissed under CCP § 583.250. 

Palma’s motion to dismiss Mendoza’s complaint is granted as to Palma.  Given this ruling, the Court need not address the issues concerning the validity of Mendoza’s purported April 1, 2022 service of summons. 

Palma is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 26^th day of January 2023