Judge Jill Feeney, Case 19STCV33719 2023-02-02 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.

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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.

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This action commenced on September 20, 2019. Plaintiff Casandra M. Abreu, by and through her Guardian ad Litem, Sandra Gomez, brings this action against Defendants Diego Alonso Reyes Molina, RRL Logistics LLC, Geriq Logistics, LLC, and Ramon Leon. Plaintiffs causes of action are: general negligence, respondeat superior, negligent supervision, negligent hiring/retention, and wrongful death. This matter arises from an incident that occurred on January 11, 2019 in which Plaintiff’s mother was pushed out of a vehicle operated by Molina during the course and scope of his employment with RRL. Plaintiff’s mother subsequently died on October 1, 2019.

On September 16, 2022, the Court heard Plaintiff’s arguments as to why this action should not be dismissed against Defendant Diego Alonso Reyes Molina for Plaintiff’s failure to serve Molina within three years of the filing of this action. The Court continued the matter to allow Plaintiff to submit supplemental briefing on the issue.

Plaintiff argues that Molina has been a missing person in Mexico since December 23, 2021 and that the time period after he was declared missing should be excluded from the calculation of time under Code Civ. Proc., section 583.240. Plaintiff also argues that she exercised reasonable diligence in prosecuting the case because she hired a private investigator to locate Molina and is still attempting to locate him. Plaintiff also argues that the time period should be tolled due to the California Judicial Council’s emergency rules.

Plaintiff reiterates the argument that the computation of time with respect to Code Civ. Proc., section 583.240 must be tolled. Plaintiff also argues that Geriq lacks standing to oppose Plaintiff’s amended brief because Geriq’s counsel does not represent Molina. Plaintiff also argues that California Judicial Counsel Emergency Rules 9 and 10 toll the 3 year deadline.

Code Civ. Proc., 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.) Conditions under which time is excluded from the calculation of the time for service, including when service was impossible, impracticable, or futile due to causes beyond the plaintiff's control, ordinarily must be construed strictly against the plaintiff. (Shipley v. Sugita (1996) 50 Cal.App.4th 320, 327.)

Plaintiff submits supplemental briefing and argues that this action should not be dismissed with respect to Defendant Molina. Specifically, Plaintiff argues that Molina is a missing person and the time since he was declared missing should be excluded from the calculation of time with respect to the three-year limitation of Code Civ. Proc., section 583.210. Although Defendant Geriq is not involved in in this dispute, Geriq is still interested as a party in this action. Section 583.250 provides that any person (whether named as a party or not) may file a motion to dismiss for failure to make timely service. Here, Geriq did not file a motion, it was the Court’s own motion, but the Court may still consider its briefing.

Plaintiff’s counsel testifies that his office substituted as attorneys of record for Plaintiff in March 2022. (Yakim Decl., ¶2.) Upon receiving Plaintiff’s file from her previous attorney, counsel determined that there were previous attempts to serve Molina. (Id., ¶4.) Counsel then learned of Molina’s last-known address in Mexico after receiving discovery responses. (Id., ¶5.) Counsel then hired an investigative service to locate Molina to no avail. (Id., ¶7.) Plaintiff is now in the process of serving Molina under the Hague Convention. (Id., ¶8.) On September 29, 2022, Plaintiff’s investigator notified Plaintiff that Molina is missing and was declared a missing person in Mexico on December 23, 2021. (Plaintiff’s brief, Exh. A.)

Gariq’s counsel testifies that Defendant RRL Logistics, LLC served discovery responses on September 15, 2020 containing Molina’s address in Mexico. (Navarro Decl., ¶5.) RRL served additional responses in February 2021 again containing Molina’s address in Mexico. (Id., ¶6.)

This action commenced on September 20, 2019 and the three-year deadline to serve Molina passed on September 20, 2022. The evidence shows that Plaintiff’s new counsel was unaware that Molina was a missing person until September 29, 2022, after the three-year deadline had already passed. Plaintiff also fails to provide details and dates as to her former counsel’s earlier attempts at serving Molina. Plaintiff’s counsel simply asserts that based on the review of the file of plaintiff’s previous counsel there have been attempts to locate and serve Defendant Molina.

Exclusions of time under Code Civ. Proc., section 583.240 must be strictly construed against Plaintiff. Prior to September 29, 2022, service on Molina was still under Plaintiff’s control because Plaintiff did not know Molina had gone missing in Mexico. Plaintiff has also possessed Molina’s last known address in Mexico since at least September 15, 2020. There is no explanation for why Plaintiff’s former counsel failed to serve Molina between September 15, 2020 and March 2022. There are no details as to what earlier attempts were made at service and why Defendant Molina was not served prior to his going missing on December 23, 2021.

Plaintiff’s current counsel admits that he did not correct the service issue earlier because he addressed other issues after commencing representation, including discovery motions, a protective order, and depositions of Plaintiff’s guardian ad litem. However, attorney error is not a cause beyond the plaintiff’s control. (Shipley v. Sugita (1996) 50 Cal.App.4th 320, 327.)

Plaintiff argues that she is now attempting to serve Molina under the Hague Convention and requests that the Court consider her reasonable diligence in attempting to serve Molina. However, dismissal is mandatory where a defendant is not served within three years unless time is excluded under Code Civ. Proc., section 583.240. Here, Plaintiff fails to show any time should be excluded under section 583.240. Dismissal is mandatory under these circumstances.

Plaintiff also argues that three-year time period is tolled under California Judicial Council Emergency Rules 9 and 10. However, the emergency rules govern statutes of limitations and the 5 year time limit to bring an action to trial under Code of Civil Procedure section 1008. The Emergency Rules do not affect the three-year rule under Code Civ. Proc., section 583.210. Here, the Emergency Rules do not toll the three-year time period.

Stated another way, given that Molina was declared a missing person on December 23, 2021 and Plaintiff provides no specifics about efforts to locate and serve him prior to that time, there is no dispute that the time frame between the filing of the suit on September 20, 2019 through and including December 22, 2021 is not tolled from the three year period. This period is 824 days or 2 years, 3 months and 2 days. Furthermore, there is no dispute that the period between December 23, 2021 and March 16, 2022 is also not tolled. As stated previously, there are no specifics about Plaintiff’s prior counsel taking any actions to find or serve Defendant Molina, even according to the Hague Convention protocol as Plaintiff now thinks is appropriate, during this time frame prior until present counsel substituted in on March 17, 2022. The time period from December 23, 2021 through March 16, 2022 is 84 days or 2 months and 22 days. That leaves the total as 2 years, 5 months and 24 days.

Turning to the actions of present counsel, present counsel also provides no information indicating that specific actions were taken on their part to locate Defendant Molina during the remaining statutory period. The declaration of Beshoy Yakim (filed on 10/12/2022) does not provide any dates for any actions taken by Plaintiff’s present counsel. The declaration vaguely states “Plaintiff hired an investigative service to locate Defendant Molina. The investigative service yielded no results in the United States.” (Paragraph 6.) No details are given as to when, what steps were taken, etc. The declaration further vaguely states “Plaintiff is in the process of effecting service of process of Defendant Molina in Mexico under the Hague Convention.” (Paragraph 7.)

In a filing on November 16, 2022, Plaintiff revealed for the first time that Molina had been declared a missing person in Mexico on December 23, 2021. In support of this contention, Plaintiff attached a letter dated September 29, 2022 (after the three year deadline to serve had passed) from an investigation firm to Plaintiff’s counsel revealing that they could not find Molina in California and that “our open-source results have also revealed that Diego Alonso Reyes Molina is considered a missing person in Mexico since December 23, 2021.” Plaintiff’s current counsel does not document any efforts it made at all to find Defendant Molina prior to the passage of the three year period.

The tolling of time periods where “[s]ervice, for any other reason was impossible, impracticable, or futile due to causes beyond the plaintiff’s control” cannot apply when Plaintiff fails to document any efforts to locate and serve a defendant within the statutory period. The idea behind such periods of time being tolled is that a plaintiff has been exercising reasonable diligence to find a defendant. Here, no evidence of diligence within the statutory timeframe has been documented.

The Court further notes that “[f]ailure to discover relevant facts or evidence is not a cause beyond the plaintiff’s control for the purpose of the subdivision.” Here, there was an open source document that revealed Defendant’s missing status. Assuming arguendo that executing a request for service under the Hague Convention is the proper way to proceed, Plaintiff had ample time to do so within the statutory period.