Judge: Douglas W. Stern, Case: BC661242, Date: 2023-07-25 Tentative Ruling

Case Number: BC661242    Hearing Date: July 25, 2023    Dept: 68

Motion to Dismiss for Failure to Effect Service within 3 Years

Wang Shoutu vs. Ling Yandong, BC661424

Moving Party: Defendant Ling Yandong

Background

On May 15, 2017 Plaintiff Wang Shoutu filed his Complaint for Entry of California Court Judgment Pursuant to the Uniform Foreign Judgments Recognition Act, Civil Code § 1713 et seq.  Plaintiff is alleged to be a resident of the People’s Republic of China.  (Complaint ¶ 1.)  Defendant Ling Yang Dong is alleged to be a resident of the People’s Republic of China.  (Complaint ¶ 2.)  Defendant Ling Yan Dong’s wife is alleged to reside in Los Angeles County, California.  (Complaint ¶ 3.)  It is claimed that Defendant Ling Yan Dong and his wife own a single family residence in Arcadia, California with a value (in 2017) claimed to be $6,000,000.

“10.  Plaintiff herein brought suit in the Trial Court on January 2, 2014 against Suzhou Dingi Real Estate Development Co., Ltd.(“Suzhou Dingi”); Shanghai Dingjin Investment Group Co., Ltd.(“Shanghai Dingjin”); and defendant herein, Ling, alleging breach of a loan agreement of December 17, 2012 in the amount of 50,000,000 yuan (approximately $7,246,376 US at the current conversion rate of $1 = 6.9 yuan).  Defendant Ling signed the loan agreement as guarantor.

11. On May 10, 2014, following trial, the Court entered … judgment…”

*     *     *

“13. The total judgment, as entered by the Trial on May 10, 2014 is 66,221,369 yuan, which is the equivalent in US dollars, as of the filing of this complaint to $9,597,299.86. The judgment bears interest at four (4) times the benchmark interest rate for the same type of loans in the corresponding period stipulated by the People's Bank of China. The judgment is final.”

*    *     *

15. The total amount due to plaintiff as of the filing of this lawsuit, is $13,845,582 (95,534,520 yuan), inclusive of post judgment interest based on the Trial Court’s ruling of May 10, 2014, plus prejudgment interest of 10% per annum from the date of filing herein.”

This case has a long history of attempts to serve Defendant.  The history is recited in the Defendant’s Motion to Dismiss, pages 3-8.

Defendant Ling Yan Dong filed this motion to dismiss on the basis that Plaintiff has failed to serve the Summons and Complaint within three years of filing the suit.  (Code of Civil Procedure § 583.210.)  Plaintiff has been attempting to serve Defendant after obtaining a writ of attachment against real estate that Defendant owns in Arcadia, California.

Defendant is a resident of China.  Defendant has been in China the entire time that Plaintiff has attempted to serve him.  There have been several instances where Plaintiff filed proofs of service.  Each time the Court granted motions to quash service finding them to have been defective.  Plaintiff also obtained entry of default, but the Court vacated that as well finding the service to have been defective.  Plaintiff opposes Defendant’s motion, relying on Code of Civil Procedure § 583.240.

Analysis

Defendant filed this motion pursuant to Code of Civil Procedure § 583.210, which states that:

“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.”

The complaint was filed over six years ago on May 15, 2017.

Plaintiff opposes Defendant’s motion citing Code of Civil Procedure § 583.240 subparts (a) and (d), which states as follows:

“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) * * *

(c) * * *

(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.”

Plaintiff points to subsections (a) and (d) in support of his opposition.  Plaintiff argues that because Defendant has been in China, he has not been amenable to the process of the Court.  

“Here, by Defendant’s own admission, he has been in China the entire time since the Complaint was filed in this case.  (See Ling Declaration, filed November 3, 2021, at paragraphs 14-16)  Defendant, in China and outside the jurisdiction of the Court, was therefore “not amenable to the process of the court” as defined in Section 583.240(a).”  (Opposition pg. 5:23-26.)

Insofar as Plaintiff claims that Defendant was “not amenable to the process of the court,” that does not appear to be the case.  While Defendant has not come into the State of California during the period of time that this case has on file, that is not the test.  He was legally amendable to the process of the Court if he had been properly served with the summons and complaint under the Hague Convention.

Plaintiff also claims that subpart (d) applies on the basis that service “was impossible, impracticable, or futile due to causes beyond the plaintiff's control.”

“The exclusion provided by section 583.240, subdivision (d) for service which is “impossible, impracticable, or futile due to causes beyond the plaintiff’s control” must be strictly construed against the plaintiff.  As the Law Revision Commission Comment states for this section: “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.”  Williams v. Los Angeles Unified School Dist. (1994) 23 Cal.App.4th 84, 102 [28 Cal.Rptr.2d 219, 230]

(The Court recognizes that in this case the judgment on the merits was decided in China, and the Defendant has been aware of this case for many years, as he has successfully filed motions the quash service of the summons and complaint.  Hence some of the rationale stated in the above quote might not be applicable.  Nonetheless, the Court is bound to apply the rule that the statute must be “strictly construed.”)

Plaintiff argues that service has been impracticable and/or futile because of Defendant having been in prison in China from 2016-2019 and because Defendant has had to conform to the requirements of the Hague Convention for service of process, and that both of these things have been beyond Plaintiff’s control.

The Court disagrees.  While it is clear that Plaintiff has been diligent in attempting numerous times to serve Defendant and has found it very difficult due to the fact that Defendant has been in China the entire time (and incarcerated for a number of years in China as well, that extreme difficulty is not the same as “impossible, impractical, or futile.”  (the Court readily admits that it is not clear under the case law what it is that would constitute “impossible, impractical, or futile.”)

While the Court is sympathetic to the difficulties Plaintiff has had in attempting to serve Defendant, Plaintiff has already been trying for over six years to serve Defendant.  The failure to serve the summons and complaint in this case does not, otherwise preclude Plaintiff from seeking to again have the Chinese judgment converted to a California judgment under Code of Civil Procedure § 1713, assuming that it otherwise remains proper to do so under that statute.

The Court GRANTS Defendant’s motion to dismiss pursuant to Code of Civil Procedure § 583.210.

Order

1.                  Defendant Ling Yandong’s motion to dismiss is GRANTED without prejudice.