Judge: H. Jay Ford, III, Case: 21SMCV016655, Date: 2025-05-15 Tentative Ruling

Case Number: 21SMCV016655    Hearing Date: May 15, 2025    Dept: O

 Case Name:  Booth, et al., v. Ingraham, et al.

SUBJECT:                 MOTION TO QUASH SERVICE OF SUMMONS – DOES 5, 7-20, 22-50

MOVING PARTY:   Defendant DOES 5, 7-20, 22-50

RESP. PARTY:         Plaintiffs Ron Booth, Michele Booth, Sofia Booth, and Dominique Booth

TENTATIVE RULING

            Defendant DOES 5, 7-20, 22-50’s Motion to Quash Service of summons is GRANTED. Plaintiffs Ron Booth, Michele Booth, Sofia Booth, and Dominique Booth failed to complete service for Defendant Does within the mandatory three year and 60 day deadline pursuant to CCP §§ 583.210, 583.250. As defined by CCP 583.110(a) service includes the return of summons. The Court orders Defendant Does 5, 7-20, 22-50 dismissed from the action with prejudice. Defendants to file proposed order.

REASONING

“(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.”

(Code Civ. Proc., § 583.210.)

“(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.”

(Code Civ. Proc., § 583.250.)

            “’Service’ includes return of summons.” (Code Civ. Proc., § 583.110, subd. (f).) “A return of summons is required to inform the court that the defendant has received jurisdictional notice.” (Wong v. Armstrong World Industries, Inc. (1991) 232 Cal.App.3d 1032, 1034.)

“The word 'return' has a number of meanings in procedural law, and two of them apply to service of process. First, and most commonly, it means a paper: the 'indorsement in writing' or statement of the process server (officer or private person) certifying what he has done, which constitutes the proof of service. Second, it means an act: the act of delivering back the process to the court with the above mentioned certificate or affidavit, so that the court may be informed of the fact that the requisite notice has been given.”

(Kaiser Foundation Hospitals v. Superior Court (1975) 49 Cal.App.3d 523, 526, disapproved of on separate grounds by Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243.)

In Bishop v. Silva, the trial court granted defendant's motion to quash service for mandatory dismissal under Code of Civil Procedure § 583.250 because plaintiff "had not effected return of summons or other proof of service within three years and sixty days after the action was commenced." (Bishop v. Silva (1991) 234 Cal. App. 3d 1317, 1320.) The appellate court affirmed and clarified that "[t]he excuse of impossibility, impracticability, or futility should be strictly construed" and "[t]he fact that [Defendant] may have known of the lawsuit does not excuse plaintiff's failure to effect timely service." (Id. at pp. 1322, 1324; see also (Weatherby v. Van Diest (1991) 233 Cal.App.3d 506, 510–511 [appellate court upheld a mandatory dismissal for not completing service, including a return of summons, prior to the three year and 60-day deadline, even when Defendants filed an answer after the three-year deadline passed].)

“To interpret the 60-day extension established by the legislative enactment of section 583.210, subdivision (b) to require anything other than the mandatory return established by the straightforward wording of the statute would render the amendment meaningless. If the Legislature had intended the outcome plaintiff suggests, it would have removed the requirement for return of the summons altogether.The Legislature did not do so. The Legislature chose instead to add 60 days. It chose to use the word “shall” when establishing the 60-day extension on the time to return the summons. It knowingly used mandatory language. There is only one outcome that could logically be interpreted as a legislative intent. That is, that the court must dismiss any action where the summons is not returned within the three-year and sixty-day time period set forth within section 583.210.”

(Weatherby, supra, 233 Cal.App.3d at pp. 510–511.)

            Defendant DOES 5, 7-20, 22-50 (collectively, “Defendants”) move to quash service of summons due to Plaintiffs Ron Booth, Michele Booth, Sofia Booth, and Dominique Booth (collectively “Plaintiffs”) failure to complete service, including the return of service, within the three year and 60-day mandatory service deadline pursuant to CCP §§ 583.210, 583.250.

            Plaintiffs filed the original complaint on 10-14-21, thus the three-year cutoff for service of process, including DOE defendants, was 10-14-24. (See Higgins v. Superior Court (2017) 15 Cal.App.5th 973, 982, as modified (Sept. 28, 2017) [“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”].) Additionally, the cutoff for filing the proof of service was 60 days after the alleged service with 12-13-24 operating as the final day to file proof of service with the court if in fact service was conducted on the last day to serve, 10-14-24.

Plaintiffs filed DOE Amendments for DOES 5–50 on 9-20-24, and as of the motion filing date, 3-12-25, had not filed any proofs of service with the Court. On 2-5-25, Plaintiffs shared a folder with Defendants containing sixty-five alleged proofs of service for DOE Defendants that that yet to be filed with the Court at that date. (See Harvey Decl., ¶ 11.)

On 4-15-25, Plaintiffs filed proofs of service for thirty DOE Defendants including DOES 10, 13–16, 18–21, 23–26, 28–35, 41, 42, 44, 46–49. (Harvey Reply Decl., ¶ 9.)

As of 5-12-25 Plaintiffs have failed to file proofs of service for DOES 5, 7–9, 11, 12, 17, 22, 27, 37–40, 43, 45, and 50. (Id., ¶ 10.)

Plaintiffs do not dispute that the proofs of service have not been filed prior to the 60-day mandatory deadline. Instead, Plaintiffs argue that Defendants waived the Plaintiff’s failure to file proofs through Defendants’ general appearance. Plaintiffs argue Defendants made a general appearance by seeking and obtaining an agreement with Plaintiffs for an extension of time to respond to the Complaint, and additionally submitting a signed joint statement “outlining the parties agreement to further extend the deadline to respond and seeking this Court’s permission.” (Opposition, pp. 6–7.)

“A general appearance is one in which the defendant participates in the action in a manner which recognizes the court's jurisdiction.” (Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 250.) “[T]he time limitation within which return of summons must be made is inapplicable when a defendant makes a general appearance within three years and sixty days of commencement of the action.” (Wong, supra, 232 Cal.App.3d at p. 1033.)

Plaintiffs argue that Defendants made a general appearance on 10-31-24 by requesting from Plaintiffs an extension of time to determine DOE defenses, and Plaintiffs agreed upon the extension. (Rosenweig Decl., ¶ 7; Ex. B.) Plaintiffs cite to RCA Corp. v. Superior Court (1975) 47 Cal. App. 3d 1007, and Roth v. Superior Court of Los Angeles County (1905) 147 Cal. 604 to support this argument however, both cases are distinguishable from the issue here.  RCA relied on Roth to hold when parties have an agreed upon and signed stipulation to extend time, whether filed or not, within the three year period to serve, that agreed upon and signed stipulation constitutes a general appearance. (See generally, RCA Corp. v. Superior Court (1975) 47 Cal. App. 3d 1007; Roth v. Superior Court of Los Angeles County (1905) 147 Cal. 604.)

Here, Plaintiffs declare that Defendants requested an extension of time on 10-31-24, prior to the three-year deadline expiration, however, Plaintiffs do not provide evidence of a signed stipulation or agreement between the parties as was the case in RCA and Roth. Plaintiffs show a signed stipulation filed on 1-15-25, with a second one filed on 3-4-25, however Plaintiffs do not show or prove that these stipulations were signed within the three-year time period.

Thus, Plaintiffs do not show that that Defendants have made a general appearance within the three year and sixty days of the commencement of the action,” in order to waive filing of proofs of service with the Court. (Wong, supra, 232 Cal.App.3d at p. 1033.)  

The Court need not address any further arguments provided by the parties. Plaintiffs failed to complete service on DOES 5, 7-20, 22-50, which includes filing proofs of service with the Court as defined by CCP § 583.110(f),within the three years and 60 days from the commencement of the action pursuant to CCP § 583.210. Thus, dismissal is mandatory (See  Bishop v. Silva (1991) 234 Cal. App. 3d 1317, 1320; Weatherby v. Van Diest (1991) 233 Cal.App.3d 506, 510–511.)

Defendant DOES 5, 7-20, 22-50 Motion to Quash is GRANTED. Defendants are dismissed the from this action with prejudice per CCP § 583.250.