Judge Jill Feeney, Case 19STCV17962 2023-01-06 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

Plaintiff’s Complaint alleges that on January 31, 2019, Plaintiff Leticia Garcia was a passenger on Defendant Los Angeles County Metropolitan Transportation Authority’s (“MTA’s”) bus when she slipped and fell because of a dangerous condition. Plaintiff alleges claims for negligence, liability under Gov Code section 815.2 and for violation of a common carrier. Plaintiff filed her complaint on May 23, 2019.

Whitman moves to dismiss Plaintiff’s Complaint against her on the grounds that the summons and complaint were not served on her within three years of commencing this action pursuant to Code of Civil Procedure, Section 583.250.

Plaintiff argues that Whitman was not amenable to the process of the Court until October 3, 2022 because Plaintiff could not identify Whitman as the bus driver involved in the subject collision because MTA engaged in tactics concealing Whitman’s identity from Plaintiff. Plaintiff also argues Whitman should be estopped from asserting Code of Civil Procedure, Section 583.240 because Plaintiff was lulled into a false sense of security with respect to this section. Plaintiff also argues that service was impossible, impracticable, or futile because Plaintiff only discovered Whitman’s identity after the Court ordered MTA to produce bus drivers for deposition.

Whitman argues that Plaintiff’s arguments are without merit because Whitman was not involved in the discovery dispute which allegedly caused the delay in service. Whitman also points out that Plaintiff relies on case law that was overruled by the legislature after the 1982 amendments to the statute. Plaintiff’s argument that Whitman was not amenable to service is without merit because she was in fact served in California. Whitman also argues that she did not engage in any conduct that would justify estoppel. Finally, Whitman argues that Plaintiff will not be adversely affected by the granting of this motion because she may still recover from MTA.

Code of Civil Procedure, Section 583.210 requires the summons and complaint be served upon a defendant within three years after the complaint is filed. (Code Civ. Proc., section 583.210(a).) The court may not dismiss an action for delay in prosecution unless service has not been made within two years after the action is commenced against the defendant. (Id., section 583.420(a)(1).) If service of the summons and complaint has not been served upon a defendant within the three-year statutory time period, the court shall dismiss the action. (Id., section 583.250.)

(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 the subdivision.

“Amenable to the process of the court,” for purposes of calculation the three-year period in which a defendant must be served refers to whether the defendant was subject to being served under the applicable constitutional and statutory provisions, not to defendant’s reasonable availability, as practical matter, for service of process. (Watts v. Crawford (1995) 42 Cal.Rptr.2d 81.)

Whitman seeks dismissal of Plaintiff’s Complaint against her on the grounds that she was not served until October 29, 2022, more than three years after the commencement of this action.

Plaintiff first argues that Whitman was not amenable to the process of the court because Plaintiff could not determine Whitman’s identity. However, whether a defendant is amenable to the process of the court refers to whether a defendant was subject to being served, not whether the defendant was available. Here, Whitman was later served in California and there is no evidence that Whitman was not subject to being served.

Plaintiff then argues that Whitman should be estopped from seeking to dismiss under Section 583.210 because MTA engaged in acts that prevented Plaintiff from discovering Whitman’s identity. Plaintiff cites Tresway Aero, Inc. v. Superior Court (Dent) ( 1971) 5 Cal. 3d 431, 442, which states “One cannot justly or equitably lull his adversary into a false sense of security, and thereby cause his adversary to subject his claim to the bar of the statute of limitations, and then be permitted to plead the very delay caused by his course of conduct as a defense to the action when brought.” However, as Whitman points out, Whitman herself was not involved in the discovery dispute with MTA and there is no evidence that she concealed her own identity from Plaintiff. Thus, estoppel does not apply here because Whitman brings this motion to dismiss, not MTA.

Plaintiff also argues that it was impossible, impractical, and futile to serve Whitman because Plaintiff did not know Whitman’s identity until the Court ordered Defendant MTA to allow Plaintiff to depose the bus drivers who drove the route involved in the dispute. The Court notes that Plaintiff consistently sought discovery as to the disputed bus driver’s identity and that Whitman was only named as the bus driver who operated the bus at issue in this case on May 5, 2022, when the Court ordered MTA to provide Plaintiff with Whitman’s name and address.

The evidence shows that it was impossible for Plaintiff to serve Whitman between the time this action commenced and May 5, 2022 because Plaintiff did not know Whitman’s identity. Defendant MTA was the only party who possessed knowledge of Whitman’s identity. Thus, it was not within Plaintiff’s control to serve Whitman because Plaintiff could not have discovered Whitman’s identity without MTA disclosing it. Accordingly, the time between the date this action commenced, and May 5, 2022 is excluded from the calculation of time under Section 583.240.