Judge Barbara M. Scheper, Case 20STCV18357A 2023-01-27 Tentative Ruling

Judge: Barbara M. Scheper, Case: 20STCV18357A, Date: 2023-01-27 Tentative Ruling

Case Number: 20STCV18357A Hearing Date: January 27, 2023 Dept: 30

Dept. 30

Calendar No.

Bankuthy, et. al. vs. Millennium House, Inc., et. al., Case No. 20STCV18357

Tentative Ruling re: Plaintiffs’ Motion to Vacate Dismissal of Millennium House

Plaintiffs Michael Bankuthy, Abraham Cheng, Luke Pollock, Michael Salazar, and Ryan Stegen (collectively, Plaintiffs) move for an order vacating the dismissal of Defendant Millennium House, Inc. (Millennium House) and granting leave to serve Millennium House with the Third Amended Complaint (TAC). The motion is denied. This is an improper motion for reconsideration supported only by Plaintiffs’ counsel’s improper alterations to the already filed proofs of service.

“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.” (Code Civ. Proc., § 583.410.) Grounds for dismissal based on delay in prosecution include where “[s]ervice is not made within two years after the action is commenced against the defendant.” (Code Civ. Proc., § 583.420, subd. (a)(1).) Dismissals for failure to prosecute are without prejudice. (Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 214; Code Civ. Proc. § 581, subd. (b)(4).)

“The policy of the dismissal statutes is to promote trial of cases before evidence is lost and memories dim and to protect defendants from being subjected to the annoyance of unmeritorious actions that remain undecided for indefinite periods of time.” (Davis v. Allstate Ins. Co. (1989) 217 Cal.App.3d 1229, 1232.)

Plaintiffs commenced this action on May 14, 2020, and filed the First Amended Complaint (FAC) on May 27, 2020. Plaintiffs’ Proof of Service filed July 2, 2020, states that Plaintiffs served Millennium House with the complaint via personal service on Defendant Peter Schuster on June 12, 2020. On September 25, 2020, Plaintiffs filed a request for entry of default as to Millennium House. On October 1, 2020, the application for entry of default was rejected on the grounds, inter alia, that Peter Schuster was not identified as an authorized agent for Millennium House.

On November 17, 2020, Plaintiffs filed the Second Amended Complaint (SAC). Plaintiffs’ accompanying Proof of Service states that Plaintiffs served Millennium House with the SAC through Schuster on December 18, 2020, via subservice on Jarred Abshire at 125 S. Boyle Ave. A declaration of due diligence was attached but did not set forth any attempts at personal service.

On March 26, 2021, Plaintiffs filed the Third Amended Complaint (TAC), and emailed a copy of the TAC to counsel for Schuster. (Ricketts Decl., Ex. 10.) Plaintiffs’ TAC added one cause of action under the Bane Act. Counsel for Plaintiffs sent a Notice and Acknowledgement of Receipt to Schuster as Millennium House’s agent for service of process which was never returned.

Plaintiffs did not file any Proof of Service for the TAC with respect to Millennium House. The Court held an Order to Show Cause regarding service of Millennium House on March 17 and May 17, 2021. On September 16, 2022, following a non-appearance case review, the Court ordered Millennium House dismissed for failure to prosecute.

Here, Plaintiffs seek to vacate the dismissal of Millennium House, and request leave to serve it with the TAC via personal service on Schuster. Plaintiffs argue that the dismissal of Millennium House was in error because they have substantially complied with the service requirement based on their prior service of the FAC and SAC on Millennium House. The Court disagrees.

Plaintiffs’ counsel was warned repeatedly that the Court did not have proper proofs of service for the complaint or any amended complaint. As noted above, Plaintiffs’ request for entry of default as to Millennium House was rejected on October 1, 2020. Over two years later Plaintiffs’ counsel has filed an amended proof of service describing Schuster as the agent for service of process. The amended proof of service also adds that the First Amended Complaint was served in contrast to the original proof of service. The proof of service for the second amended complaint contains a declaration of due diligence but does describe any prior attempts to personally serve Millennium House. Plaintiffs’ counsel has filed an amended proof of service arguing in the document that due diligence is not required in the case of subservice on a corporation rather than individuals. The Court held multiple hearings on the status of service of Millennium House as well as other defendants. Plaintiffs’ counsel never asserted in writing or orally at any of those hearings that proper service had in fact been made. It is beyond question that it was the Court’s view that service had not been effectuated hence the numerous hearings regarding service. Ultimately the Court dismissed Millennium House on September 16, 2022 and notified all counsel accordingly. Yet Plaintiffs did not seek relief from that dismissal until they filed their motion to vacate the dismissal over two months later on November 29, 2022. That motion was denied on December 21, 2022. Having seen the oppositions to the first motion for relief and heard the Court’s reasons for denying the motion, Plaintiffs filed the same motion supported by improperly altered proofs of service as described above.

CCP Section 1008(a) provides: “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, . . . any party affected by the order may, within 10 days after service upon the party of written noticed of entry of the order and based upon new or different, facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” The instant motion is not based on new facts or circumstances other than Plaintiffs’ counsel’s troubling alterations to previously filed proofs of service.