Judge Christopher K. Lui, Case Number: 23STCV15564, Date: 2024-11-07 Tentative Ruling

Judge: Christopher K. Lui, Case: 23STCV15564, Date: 2024-11-07 Tentative Ruling

Case Number: 23STCV15564 Hearing Date: November 7, 2024 Dept: 76

The following tentative ruling is issued pursuant to Rule of Court 3.1308 at 11:40 a.m. on November 6, 2024.

Notice of intent to appear is REQUIRED pursuant to California Rule of Court 3.1308(a)(1). The Court does not desire oral argument on the motion addressed herein.

As required by Rule 3.1308(a)(1), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 by 4:00 p.m. on November 6, 2024.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, oral argument will not be permitted.

Plaintiffs allege that Defendant attorney Roe fraudulently induced them into changing the terms of their fee relationship from hourly to a contingency, by misrepresenting the hours of legal services he had performed, and the need for additional fees for services which he did not actually perform. Without Plaintiffs’ consent, Defendant Smythe allegedly agreed to share this contingent fee when Smythe associated into the underlying case. Defendants also allegedly settled the underlying case but held the funds hostage subject to an attorneys’ fees lien claim.

This lawsuit follows fee arbitration.

Defendant Robert H. Roe moves for dismissal from this lawsuit for failure to serve the summons and complaint within three years. However, Defendant Roe, an attorney representing himself in pro per, passed away after filing this motion. The motion was originally heard on August 20, 2024. At the time of the hearing, the Court took the motion under submission. Thereafter, on October 3, 2024, the Court issued an order setting a new hearing date of November 7, 2024, and directed the parties to file opposition and reply briefs pursuant to the timing requirements of the Code of Civil Procedure. As of November 6, 2024, no further briefs were filed.

TENTATIVE RULING

Defendant Robert H. Roe’s motion to dismiss is GRANTED. Because the only other Defendants Michell Smyth and Smyth Law Group were dismissed with prejudice on April 3, 2024, the case is ordered dismissed with prejudice.

ANALYSIS

Motion To Dismiss

Request For Judicial Notice

Defendant’s request that the Court take judicial notice of the case information and register of actions from the court’s online database is GRANTED per Evid. Code, § 452(d)(court documents).

Discussion

Pursuant to Civ. Proc. Code, § 583.210 and 583.250, Defendant Robert H. Roe moves for dismissal from this lawsuit for failure to serve the summons and complaint within three years.

Plaintiff filed the Complaint on October 2, 2020. On February 16, 2024, the Court granted an order for service of the summons and complaint by publication—3 years, 4 months and 14 days after the Complaint was filed. However, Plaintiff never filed a proof of publication.

(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.

(Civ. Proc. Code § 583.210.)

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.

(b) The prosecution of the action or proceedings in the action was stayed and the stay affected service.

(d) Service, 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.

(Civ. Proc. Code § 583.240.)

(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.

(Civ. Proc. Code § 583.250 [bold emphasis added].)

Here, none of the conditions set forth in Civ. Proc. Code, § 582.240 apply to exclude any time for the three-year period set forth in Civ. Proc. Code, § 583.210. Because Plaintiff did not serve Defendant Robert H. Roe within 3 years of filing the Complaint, his dismissal is mandatory.

Although Plaintiff’s counsel indicates that he discovered on July 22, 2024 that Defendant Roe passed away on July 21, 2024 (Declaration of E. Patrick Morris, ¶ 4), this date was after the motion was filed on April 9, 2024. As discussed above, by the date the motion was filed, the 3-year period had already passed, so Defendant’s Roe’s subsequent death does not change the analysis. There does not appear to be any need for a “winding up” attorney or personal representative to be appointed.

The motion to dismiss is GRANTED. Because the only other Defendants Michell Smyth and Smyth Law Group were dismissed with prejudice on April 3, 2024, the case is ordered dismissed with prejudice.