Judge: Lisa R. Jaskol, Case: 20STCV40213, Date: 2024-09-23 Tentative Ruling

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Case Number: 20STCV40213    Hearing Date: September 23, 2024    Dept: 28

Having considered the moving, opposition, and reply papers, the Court rules as follows. 

BACKGROUND 

On October 20, 2020, Plaintiff Lanell Williams-Yulee filed this action against Defendants Deshawn Anthony Stewart (“Stewart”), Ali Razi (“Razi”), R. Stephen Doan (“Stephen Doan”), Larry Adamson (“Adamson”), Richard Aquiar (“Aquiar”) and The Midnight Mission, Incorporated (“Midnight Mission”) for battery, assault, intentional infliction of emotional distress, negligent security, premises liability, dangerous condition [of] public property, and wrongful death/survival action. 

On December 31, 2020, Plaintiff Lanell Williams-Yulee, individually and as next of kin and successor-in interest to the estate of Yusuf El-Williams, Deceased (“Plaintiff”), filed an amended complaint against Defendants Stewart, Razi, Stephen Doan, Adamson, Aquiar, G. Michael Arnold (“Arnold”), David R. Doan (“David Doan”), Arpit Jain (“Jain”), Midnight Mission, and Does 1-50 for battery, assault, intentional infliction of emotional distress, negligent security, premises liability, dangerous condition [of] public property, wrongful death, and survival action. 

On March 19, 2021, the Court dismissed Razi, Stephen Doan, Adamson, Aquiar, Arnold, David Doan, and Jain without prejudice at Plaintiff’s request. 

On July 23, 2021, the Court sustained Midnight Mission’s demurrer and granted Midnight Mission’s motion to strike with leave to amend. 

On August 12, 2021, Plaintiff filed a second amended complaint against Stewart, Midnight Mission, and Does 1-60 “For Wrongful Death and Survival Action Damages Sounding in the Following Causes of Action: 1. Battery; 2.Assault; 3. Intentional Infliction of Emotional Distress; 4.Negligent Security; 5. Premises Liaibility; and, 6. Dangerous Condition [of] Public Property.” 

On September 29, 2021, Midnight Mission filed an answer to the second amended complaint and a cross-complaint against Cross-Defendants Stewart and Roes 1-50 for equitable indemnity, contribution, and declaratory relief. 

On June 23, 2023, the Court granted Midnight Mission’s motion for summary judgment.  On September 1, 2023, the Court entered judgment in favor of Midnight Mission. 

On November 20, 2023, the clerk dismissed Midnight Mission’s cross-complaint with prejudice at Plaintiff’s request. 

On November 21, 2023, Plaintiff amended the second amended complaint to include Defendant Union Rescue Mission (“Union Rescue Mission”) as Doe 1. 

On April 25, 2024, Plaintiff filed a proof of personal service of the summons, second amended complaint, and other documents on Union Rescue Mission on April 17, 2024. 

On June 3, 2024, Plaintiff filed a proof of substituted service of the summons, second amended complaint, and other documents on Union Rescue Mission on May 31, 2024. 

On August 15, 2024, Union Rescue Mission filed a motion to dismiss.  The motion was set for hearing on September 23, 2024.  On September 10, 2024, Plaintiff filed an opposition.  On September 16, 2024, Union Rescue Mission filed a reply. 

No trial date is currently scheduled. 

PARTIES’ REQUESTS 

Union Rescue Mission asks the Court to dismiss the action against Union Rescue Mission. 

Plaintiff asks the Court to deny the motion. 

UNION RESCUE MISSION’S REQUEST FOR JUDICIAL NOTICE 

Granted.  (Evid. Code, §§ 452, subd. (d), 453.) 

UNION RESCUE MISSION’S EVIDENTIARY OBJECTIONS 

          Overruled.   

LEGAL STANDARD 

          Code of Civil Procedure section 583.210 provides: 

“(a) 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. 

“(b) Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant.” 

(Code Civ. Proc., § 583.210.) 

          Code of Civil Procedure section 583.220 provides: 

“The time within which service must be made pursuant to this article does not apply if the defendant enters into a stipulation in writing or does another act that constitutes a general appearance in the action. For the purpose of this section none of the following constitutes a general appearance in the action: 

“(a) A stipulation pursuant to Section 583.230 extending the time within which service must be made. 

“(b) A motion to dismiss made pursuant to this chapter, whether joined with a motion to quash service or a motion to set aside a default judgment, or otherwise. 

“(c) An extension of time to plead after a motion to dismiss made pursuant to this chapter.” 

(Code Civ. Proc., § 583.220.) 

          Code of Civil Procedure section 583.250 provides: 

“(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. 

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

(Code Civ. Proc., § 583.250.) 

          “The court must dismiss the action (dismissal is mandatory) if defendant is not served with summons and complaint within 3 years after the action is commenced.”  (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2024) ¶ 11:51, p. 11-44, original emphasis (Cal. Practice Guide).)  “An action is ‘commenced’ when the original complaint is filed against the defendants named therein.”  (Id., ¶ 11:59, p. 11-46.)  This rule “applies even where the defendant seeking dismissal was served as one of the ‘Doe’ defendants in the original complaint, which was later amended to show his true name.  Because ‘Doe’ was named in the original complaint, the 3-year period for service and filing proof of service of summons runs from the date the complaint was filed.”  (Id., ¶ 11:60, p. 11-46.)    

DISCUSSION 

          Union Rescue Mission asks the Court to dismiss the case because Plaintiff did not serve the summons and complaint on Union Rescue Mission within three years after Plaintiff commenced the action. 

          Plaintiff filed the amended complaint naming Doe defendants on December 31, 2020.  Therefore, the deadline to file proof of service of the summons and complaint on Union Rescue Mission was December 31, 2023.  Plaintiff did not file proofs of service until April and June 2024. 

Plaintiff does not dispute the Union Rescue Mission’s contention that he did not serve the summons and complaint on Union Rescue Mission within the three-year statutory deadline.  Instead, Plaintiff asks the Court to exercise its “discretion” to deny Union Rescue Mission’s motion under Code of Civil Procedure section 473, subdivision (b), based on the mistake, inadvertence, or excusable neglect of Plaintiff or his counsel. 

“[Code of Civil Procedure section 473, subdivision (b)] mandates setting aside a dismissal when plaintiff seeks relief based on an ‘attorney’s affidavit of fault’ attesting to his or her mistake, inadvertence, surprise, or neglect’ [citation].  But this applies only to those dismissals that are the equivalent of a default [citation].  It does not require setting aside mandatory dismissals entered pursuant to [Code of Civil Procedure section 583.250].”  (Cal. Practice Guide, supra, ¶ 11:114, p. 11-64, citing Bernasconi v. Comm’l Real Estate v. St. Joseph’s Regional Healthcare System (1997) 57 Cal.App.4th 1078, 1082.) 

Even if mistake, inadvertence, or excusable neglect could serve as a basis for avoiding the mandatory dismissal requirement, Plaintiff has not presented facts establishing mistake, inadvertence, or excusable neglect by Plaintiff or his counsel. 

The Court grants the motion and dismisses Union Rescue Mission without prejudice.  (See Cal. Practice Guide, supra, ¶ 11:111.1, p. 11-61 [“The dismissal is without prejudice to refiling the action against the dismissed defendant”].) 

CONCLUSION 

The Court GRANTS Defendant Union Rescue Mission’s motion to dismiss and dismisses Union Rescue Mission without prejudice. 

Moving party is to give notice of this ruling. 

Moving party is to file proof of service of this ruling within five days.