Judge: Kerry Bensinger, Case: 19STCV05946, Date: 2023-01-09 Tentative Ruling

Case Number: 19STCV05946    Hearing Date: January 9, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On February 21, 2019, plaintiffs Alba Guillermina Carmona Suarez, Andrew Vieyra and Yaher Vieyra (collectively, “Plaintiffs:filed this action against Martha Traub and Does 1-100 for negligence.  Plaintiffs allege that they were involved in a motor vehicle collision on February 23, 2017. 

On October 18, 2022, Plaintiff filed an amendment naming Jason Traub as Doe 1.  On October 24, 2022, Plaintiff filed another amendment naming Richard Jason Traub (“Defendant”) as Doe 2.  On November 9, 2022, Plaintiff filed a proof of service showing that Defendant was served with the summons and complaint on November 3, 2022. 

On December 7, 2022, Defendant filed this motion to dismiss on the grounds that he was not served with the summons and complaint within 3 years of the filing of this action. 

II.          LEGAL STANDARD

“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.” (CCP § 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.” (CCP § 583.250(a).) “The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” (CCP § 583.250(b).)

“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) The prosecution of the action or proceedings in the action was stayed and the stay affected service. (c) The validity of service was the subject of litigation by the parties. (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.” (CCP § 583.240(a)-(d).)

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, 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…(3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with¿Section 583.110) of Title 8.” (CCP § 418.10(a)(1) and (3).)

In ruling on a motion to dismiss, the court may consider the court file, diligence in seeking effective service of process, the extent to which parties engaged in any settlement negotiations, diligence in pursuing discovery, nature and complexity of the case, pendency of other litigation based on common facts, nature of any extensions of time or other delay, condition of the court’s calendar, whether the interests of justice are best served by dismissal, and any other facts or circumstances relevant to fair determination.  (Cal. Rules of Court, Rule 3.1342(e).)

The period of time for service and return of summons is tolled for any time during which service, for any reason, was impossible, impracticable, or futile due to causes beyond the plaintiff’s control.  (Code Civ. Proc., § 583.240, subd. (d).)  “This excuse ‘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.  [Citation.]”  (A. Groppe & Sons Glass Co., Inc. v. Fireman’s Fund Ins. Co. (1991) 232 Cal.App.3d 220, 224.)  “[T]he trial court has broad discretion in determining whether one of the statutory excuses has been proved by plaintiff.”  (Tresway Aero, Inc. v. Superior Court (1971)

III.        DISCUSSION

Defendant argues that the deadline to identify and serve any defendants was on February 21, 2022, and Plaintiffs’ Doe Amendment on October 24, 2022 is untimely.  Defendant states that he was the purported driver and registered owner of the vehicle that was involved in the underlying accident and that the original named defendant, Martha Traub, had nothing to do with this accident because she was not the driver, the registered owner, or present at the scene.  On October 20, 2017, April 10, 2018, November 9, 12, and 30, 2022, State Farm sent correspondence to Plaintiffs’ counsel which clearly identified its insured, Defendant, as Richard Jason Traub. 

Plaintiffs did not serve Defendant until November 3, 2022, which is past the 3-year cut-off of February 21, 2022.  Defendant argues that Plaintiffs cannot show any excuse for their delay because they were aware of his identity and involvement, his name was on the traffic collision report, and Alba Carmona admitted in her deposition on August 5, 2021, that the driver of the other vehicle was a man. 

In opposition, Plaintiffs claim that Defendant concealed his identity and argue that the Doe amendment “relates back.”  The doctrine of relation back is wholly separate from the requirement that a plaintiff serve the defendant with the summons and complaint.  Plaintiffs also provide a list of other excuses, first claiming that there was a language barrier that prevented them from communicating the name of the driver to counsel.  Plaintiffs additionally claim that they only learned of Defendant’s name after Martha Traub filed a motion for summary judgment, at which point they requested and obtained the traffic collision report on October 12, 2022, and filed the Doe amendment naming Defendant.  Plaintiff’s counsel declares that he did not previously obtain a traffic collision report because he believed that liability was not contested.  (Levian Decl., ¶ 5.)  He also states that he believed that Martha Traub was the driver because she was identified as the insured and thought that Defendant was just another insured party.  (Levian Decl., ¶¶ 7-8.)  Plaintiffs’ counsel declares he reached out to defense counsel on September 30, 2022, to inquire about the name of the at-fault driver but received no response. 

All of these excuses are unpersuasive.  Plaintiff testified at her deposition on August 5, 2021, that the driver of the vehicle was male.  At that point, counsel could have inquired further of his client to determine whether they had named the appropriate individual.  Additionally, it is undisputed that Plaintiffs failed to conduct any discovery until October 25, 2022, which was several years after this action was filed and long after the 3-year deadline to file and serve the summons and complaint.  Overall, Plaintiffs have not shown that serving Defendant with the summons and complaint was impossible, impracticable, or futile due to causes beyond their control.  “Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision.” (CCP § 583.240(d).) 

Last, Plaintiffs’ argument about inadequate notice of this motion and any failure to meet and confer is unpersuasive.  Plaintiffs rely on CRC 3.142 which only pertains to motions seeking discretionary dismissal under CCP 583.410-583.430.  Here, however, Defendant makes his motion under CCP 583.210.  Plaintiff’s reliance on the meet and confer requirement for demurrers is inapplicable and in any event, failure to meet and confer pursuant to CCP § 430.41 is not grounds for overruling a demurrer. 

IV.         CONCLUSION

In light of the foregoing, Defendant’s motion to dismiss is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  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.