Judge Kerry Bensinger, Case Number: 20STCV08781, Date: 2023-08-23 Tentative Ruling

MOVING PARTY: Specially Appearing Defendants William Tom and Gertrude Tom as Trustees of the Tom Family Trust

On March 3, 2020, Plaintiffs, Fred Wai Hung Yue (“Yue”) and Tzu-Fi Chu (“Chu”)¹, initiated this action against Defendants, PC Palaces, Inc. (“PC Palaces”), Xuong Ha (“Ha”), Ruben Esparza (“Esparza”), Phu Mang Phang, David Aguilar (“Aguilar”), and William Tom and Gertrude Tom as Trustees of the Tom Family Trust (“Tom Defendants”).¿ The action arises from an alleged shooting occurring at PC Palaces, a restaurant and karaoke bar.¿ On July 19, 2022, Plaintiffs filed the First Amended Complaint (“FAC”) which asserts causes of action for (1) assault, (2) battery, (3) intentional infliction of emotional distress, (4) negligence, (5) negligent hiring, supervision, and retention, and (6) false imprisonment.¿ The fourth, fifth and sixth causes of action are alleged against the Tom Defendants.

Plaintiffs allege that they were patrons at PC Palaces, a restaurant and karaoke bar, when an argument occurred between several individuals, including Ha. The argument escalated and Ha thereafter began firing a gun inside the premises. When Ha began to shoot, Esparza and Aguilar, who were working at PC Palaces at the time of incident, locked the doors of the premises to prevent patrons from exiting. Plaintiffs suffered gunshot wounds.

On June 13, 2023, specially appearing defendants William Tom and Gertrude Tom as Trustees of the Tom Family Trust (“Tom Defendants”) filed this motion to dismiss Plaintiffs’ FAC. Alternatively, Tom Defendants request leave to file their demurrer and motion to strike the FAC.

Plaintiff Yue has filed an Opposition. Plaintiff Chu, who is self-represented, has not filed an Opposition.[1] Tom Defendants have filed a Reply.

“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.” (Code Civ. Proc., § 583.210, subd. (a).) If service is not made in an action within the time prescribed, the action shall not be further prosecuted and no further proceedings shall be held in the action. (Code Civ. Proc., § 583.250, subd. (a)(1).) 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, and after notice to the parties. (Code Civ. Proc., § 583.250, subd. (a)(2).) The requirements of this section are mandatory and not subject to extension, excuse, or exception except as expressly provided by statute. “The statute is mandatory and jurisdictional and, as to any action falling within its compass, the court ‘has power to act only in a certain way, that is, by ordering a dismissal.’” (Dresser v. Superior Court in and For Contra Costa County (1964) 231 Cal.App.2d 68, 73.)

In computing the time within which service must be made, there shall be excluded the time during which any of the following conditions existed:

(b) The prosecution of the action or proceedings in the action was stayed and the stay affected service.

(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.

The burden is on the plaintiff to demonstrate that the case should not be dismissed for failure to serve within the three-year period. (Perez v. Smith (1993) 19 Cal.App.4th 1595, 1597.)

Tom Defendants are entitled to an order granting their motion to dismiss. “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.” (Code Civ. Proc., § 583.210, subd. (a).) If service is not made in an action within the time prescribed, the action shall not be further prosecuted and no further proceedings shall be held in the action. (Code Civ. Proc., § 583.250, subd. (a)(1).) (Emphasis added.) 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, and after notice to the parties. (Code Civ. Proc., § 583.250, subd. (a)(2).) Here, Tom Defendants show Plaintiffs have yet to effectuate service upon them despite originally filing the complaint more than three years ago on March 3, 2020.

Yue does not dispute having failed to serve Tom Defendants with the original Complaint or the FAC. Instead, Yue confusingly frames the motion as seeking discretionary dismissal for failure to prosecute pursuant to CCP section 583.420(a). As a discretionary dismissal, Yue argues he need only show reasonable grounds for the delay in serving the summons and complaint. Yue misreads the statute and misunderstands the applicable law. Under CCP section 583.420(a)(1), the court may not dismiss an action for delay in prosecution unless service is not made within two years after the action is commenced against the defendant. However, Yue has failed to effectuate service within three years of commencing this action. As such, CCP section 583.210(a), and not 583.420(a)(1), is applicable here.

Further, dismissal is mandatory unless Yue shows time should be excluded from the computation of the three-year deadline under CCP section 583.240. In computing the time within which service must be made, there shall be excluded the time during which any of the following conditions existed:

(b) The prosecution of the action or proceedings in the action was stayed and the stay affected service.

As Tom Defendants argue in their Reply, Yue fails to show any of the conditions delineated under section 583.240 apply here to warrant an exception to the three-year deadline. Instead, Yue details his failed efforts to serve Gertrude Tom and points to the Covid pandemic presumably to show he is entitled to equitable tolling. Neither of these reasons fit into any of the statutory exceptions under section 583.240. Additionally, as Plaintiff Chu has failed to oppose this motion, Chu also fails to show section 583.240 applies.

The motion to dismiss is granted. Plaintiffs Fred Wai Hung Yue’s and Tzu-Fi Chu’s First Amended Complaint filed as July 19, 2022, is dismissed with prejudice as to specially appearing Defendants William Tom and Gertrude Tom as Trustees of the Tom Family Trust.

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.

[1] Plaintiff Chu was properly served with this motion. As such, the failure to oppose this motion may be deemed a consent to the granting of the motion. (Cal. Rules of Court, rule 8.54, subd. (c).)