Judge: Douglas W. Stern, Case: 19STCV37275, Date: 2023-10-17 Tentative Ruling

Case Number: 19STCV37275    Hearing Date: October 17, 2023    Dept: 68

Motion to Dismiss Third Amended Cross-Complaint

Bradley M. Listermann vs. James Davis aka Mick Davise, et al., 19STCV37275

Moving Parties: Cross-Defendants Benjamin Eppinga, Scott Eppinga, and Think Humble, Inc.

Background

            Cross-Defendants Benjamin Eppinga, Scott Eppinga, and Think Humble, Inc. (Cross-Defendants) filed this motion to dismiss pursuant to CCP §§ 583.210(a) and 583.250(a)(2). Cross-Defendants argue that Cross-Complainants failed to serve the summons and complaint on them within three years after the commencement of the action, as required by CCP § 583.210(a). The original Cross-Complaint was filed on April 22, 2020. Cross-Defendants were served on August 3, 2023, and August 4, 2023, after being named in an amendment to the Cross-Complaint on July 25, 2023, as replacements for Roes. Thereafter, Cross-Defendants filed this motion pursuant to CCP § 583.250(a)(2).

            In their opposition, Cross-Complainants argue that this motion should have been a demurrer, despite CCP § 583.250(a)(2) providing for a motion to dismiss in these situations, and that Cross-Defendants did not follow the correct procedures for a demurrer. Cross-Complainants also argue that Cross-Defendants failed to account for the 178 day tolling of the statute of limitations from Emergency Rule 9 in 2020, though Cross-Defendants are not making a statute of limitations argument. Finally, Cross-Complainants argue that Cross-Defendants did not account for the discovery rule, which postpones accrual of a cause of action until a plaintiff discovers, or has reason to discover, the cause of action.

            Cross-Defendants argue in their reply that their motion is not a demurrer, nor does it need to be. They also argue that Emergency Rule 9 is not applicable here because CCP § 583.210 is not a statute of limitations. Finally, Cross-Complainants argue that the discovery rule is not applicable because newly discovered evidence is not listed as an excuse under CCP § 583.240.

Analysis

            The CCP requires that “[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.” (CCP § 583.210(a).) If service is not made within three years, “[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.” (CCP § 583.250(a)(2).) This three-year period is “mandatory” and “not subject to extension, excuse, or exception except as expressly provided by statute.” (CCP § 583.250(b).) “The purpose of Code of Civil Procedure section 583.210 is to give a defendant timely notice of the action so that the defendant can take adequate steps to preserve evidence.” (Damjanovic v. Ambrose (1992) 3 Cal.App.4th 503, 510.)

            CCP § 583.240 contains four exceptions/tolling provisions for the three-year rule:

                        (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.

(c) The validity of service was the subject of litigation by the parties.

(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.

            The excuse of impossibility, impracticability, or futility should be strictly construed 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.” (Dale v. ITT Life Ins. Corp. (1989) 207 Cal.App.3d 495, 502.)

            California courts have clarified the relation between the requirement to serve a defendant within three years under CCP § 583.210 and the “relation-back” doctrine for fictitiously named defendants:

The relation-back doctrine applicable to a fictitiously named defendant and the requirement that a plaintiff serve the summons and complaint within three years are independent concepts. Thus, even where the filing of an amended complaint on a Doe defendant relates back to the filing of an original complaint, the plaintiff must nonetheless identify and serve a Doe defendant with a summons and complaint within three years of the commencement of the action. (Lopa v. Superior Court (1975) 46 Cal.App.3d 382, 387-390, 120 Cal.Rptr. 445 [under predecessor to § 583.210, subd. (a)]; see § 583.250, subd. (d) [requirements of § 583.210 et seq. “are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute”].)

(Higgins v. Superior Ct. (2017) 15 Cal.App.5th 973, 982.)

            “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 Ct. (2018) 20 Cal.App.5th 1055, 1061.)

            In this case, Cross-Complainants did not serve Cross-Defendants in the three year time period determined by CCP § 583.210(a) because the cross-complaint was filed on April 22, 2020, and Cross-Defendants were not severed until August 3 and 4 of 2023. It does not appear that any of the circumstances that would have tolled accrual of that time from CCP § 583.240 are present. It also does not matter that Cross-Defendants were not identified by Cross-Complainants until July 2023 because courts have found that a plaintiff must identify and serve a Doe defendant within three years of the commencement of the action. This was also appropriately filed as a motion to dismiss under CCP § 583.250(a)(2).

            Further, this is not a statute of limitations issue such that it would be affected by Emergency Rule 9. “[T]he purpose of the statute of limitations is distinct and apart from that of the time limitations contained in [Code of Civil Procedure section 583.210].” (Damjanov v. Ambrose (1992) 3 Cal.App.4th 503, 509.)

            Finally, the discovery rule would not apply because CCP § 583.240(d) expressly states that “[f]ailure to discover relevant facts or evidence is not a cause beyond the plaintiff’s control for the purpose of this subdivision.”

            Based on the foregoing, the Court grants Cross-Defendants’ motion to dismiss.

Order

            Cross-Defendants’ motion to dismiss is GRANTED.