Judge Jill Feeney, Case 20STCV12033 2023-03-20 Tentative Ruling

Judge: Jill Feeney, Case: 20STCV12033, Date: 2023-03-20 Tentative Ruling

Case Number: 20STCV12033 Hearing Date: March 20, 2023 Dept: 30

Department 30, Spring Street Courthouse

March 20, 2023

20STCV12033

Motion to Set Aside Dismissal filed by Plaintiff Dylan Barnes.

Motion to Quash Service of Summons filed by Defendant Lyft, Inc.

DECISION

The motion to set aside the dismissal of Defendant Lyft is granted.

The motion to quash is granted.

Plaintiff is ordered to serve Defendant Lyft on or before March 22, 2023 and to file proof of service within five court days thereafter.

Moving parties to provide notice.

Background

This is an action for negligence. Plaintiff Dylan Barnes alleges that Defendant Andy Dick molested Plaintiff while he was a Lyft passenger in Defendant’s vehicle. Plaintiff filed his Complaint against Defendants Dylan Barnes and Lyft, Inc. on March 25, 2020.

Plaintiff’s Counsel appeared at the Final Status Conference on May 3, 2022. At that time, Plaintiff has not filed a proof of service with respect to any defendant. At the FSC, the Court advanced and vacated the May 17, 2022 trial date. The Court also set for June 28, 2022 an OSC Re: Dismissal for Failure to Serve.

On June 15, 2022, Plaintiff’s Counsel filed a proof of service indicating that Defendant Andy Dick was personally served on June 14, 2022.

One June 28, 2022, Plaintiff’s Counsel failed to appear at the OSC. Given that no proof of service had been filed with respect to Defendant Lyft, the Court dismissed Lyft without prejudice pursuant to Code of Civil Procedure Sections 583.410 and 583.420.

On August 18, 2022, Plaintiff’s Counsel filed proof of service indicating that Defendant Lyft was served on August 15, 2022.

On September 15, 2022, Lyft filed its motion to quash service of summons.

On November 18, 2022, Plaintiff filed its motion to set aside dismissal.

Summary

Moving Arguments

Plaintiff seeks a court order setting aside dismissal pursuant to Code Civ. Proc. section 473 subd. (b) on the grounds that Plaintiff’s counsel neglected to serve Lyft by the deadline set by the Court.

Lyft also moves to quash service of summons on the grounds that Plaintiff served Lyft after Lyft had already been dismissed.

Opposing Arguments

Lyft argues that Plaintiff’s motion cannot be granted because Plaintiff’s failure to serve Lyft was intentional. Lyft also argues that Plaintiff’s alleged attempt to serve Lyft two weeks before dismissal was entered is not credible and Lyft did not receive those papers. Lastly, Lyft argues that setting aside dismissal would cause Lyft irreparable harm and violate Lyft’s Due Process rights.

Plaintiff filed a declaration in opposition to Lyft’s motion to quash.

Reply Arguments

Plaintiff did not file a reply in support of the motion to set aside dismissal.

Lyft reiterates its arguments in support of its motion to quash.

Legal Standard

Set Aside Dismissal

Per Code of Civil Procedure, section 473, subdivision (b), a court may relieve a party or his counsel from a dismissal against him because of his “mistake, inadvertence, or excusable neglect.” When a party seeks relief “no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc. section 473) And when such relief is available, “there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-982, internal quotations omitted.)

Quash Subpoena

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .” (Code Civ. Proc., § 418.10(a).) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.” (Id. at 1441-1442.) When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) “A court lacks jurisdiction over a party if there has not been proper service of process.” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

Evidentiary Objections

Lyft objects to Plaintiff’s evidence submitted in support of his motion to set aside dismissal.

The objections are overruled.

Judicial Notice

Lyft requests that the Court take judicial notice of various minute orders in this matter and the Declaration of Gary Silverman in support of a request for continuance filed on April 1, 2022. The requests are denied as moot. The Court may always refer to the records in the matter at hand.

Discussion

The Court dismissed Lyft from Plaintiff’s action on June 30, 2022. Plaintiff filed the instant Motion on November 18, 2022, within the six-month deadline of the Code of Civ. Proc. section 473(b).

Plaintiff’s counsel testifies that he chose not to serve Lyft until the conclusion of the criminal case against Defendant Dick. (Motion, Exh. B, Silverman Decl., p. 2.) Counsel did not plan to proceed with the civil matter if Defendant Dick was not convicted in the criminal matter. (Id.) Counsel planned to serve Defendant Dick with the summons and Complaint immediately following the conclusion of the criminal matter and contemporaneously send a Notice of Acknowledgement of Receipt of Summons and Complaint to Lyft. (Id.) On June 14, 2022, counsel learned that Defendant Dick was convicted in the criminal matter and served him via personal service. (Id.) On June 14, 2022, counsel sent a Notice of Acknowledgement of Receipt to Lyft. (Id.) After Lyft did not return the Notice of Acknowledgement, counsel served its designated agent on August 15, 2022. (Id., p.3.) Counsel testifies that he inadvertently served Lyft after the cutoff date in June 2022 set by the Court. (Id.)

Lyft argues that Plaintiff’s motion should be denied because his counsel deliberately delayed serving Lyft, citing Jerry's Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1073. Jerry’s Shell involved a party whose attorneys regularly failed to miss discovery and did not oppose discovery motions. The court there ruled that this behavior allowed the party more time to respond to discovery and that setting aside default there would reward deliberate failures to respond to discovery. The court denied relief from default because the party could point to no mistake about the need to respond to discovery.

Here, Plaintiff’s counsel testifies that serving Lyft late in August was an oversight on his part. Unlike the attorneys in Jerry’s Shell, Lyft can point to no strategic advantage Plaintiff would gain by missing the June 28, 2022 deadline. Although litigation has been delayed because Plaintiff’s counsel waited until the conclusion of the criminal matter against Defendant Dick, there is no evidence that Plaintiff’s counsel deliberately missed the June 2022 deadline to serve Lyft.

Based on the record here, the Court concludes that Plaintiff’s Counsel failure to appear at the OSC hearing on June 28, 2022 and to serve Defendant Lyft prior to the hearing may be attributed to excusable neglect as well as inadvertence. It appears that Plaintiff’s Counsel mistakenly believed that the OSC was discharged because he filed proof of service with respect to Defendant Dick.

For this reason, the motion is granted.

Lyft moves to quash service of summons on the grounds that Plaintiff cannot effectuate service on an entity which is not a party to the action, citing Fuss v. City of Los Angeles, 162 Cal. App. 2d 643, 646 (1958). Fuss involved a corporation that was never named in a summons or complaint. Here, the Court dismissed Lyft from Plaintiff’s Complaint on June 30, 2022. Because Lyft was dismissed from Plaintiff’s Complaint at the time it was served, Lyft’s motion to quash is granted.