Judge: Loren G. Freestone, Case: 37-2019-00035874-CU-PO-CTL, Date: 2023-08-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 24, 2023

08/25/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  PI/PD/WD - Other Motion to Dismiss 37-2019-00035874-CU-PO-CTL THOMAS GARCIA VS. DALE LANE [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendants Bruce Steele and Mary Dureau's motion to dismiss is GRANTED IN PART and DENIED IN PART.

'The policy of the State of California is that a plaintiff shall proceed with reasonable diligence in the prosecution of an action.' (Higgins v. Superior Court (2017) 15 Cal.App.5th 973, 979.) 'The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant.' (Code Civ. Proc., § 583.210, subd. (a).) '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.' (Id. at subd. (b).) These deadlines are 'mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.' (Code Civ. Proc., § 583.250, subd. (b).) 'If service is not made in an action within the time prescribed,' then the 'action shall not be further prosecuted' and 'shall be dismissed.' (Code Civ. Proc., § 583.250, subd. (a).) For purposes of this section, 'service' consists of serving the summons and complaint and effecting return of summons or other proof of service. (See Code Civ. Proc., § 583.110; Biss v. Bohr (1995) 40 Cal.App.4th 1246, 1249–1250; see also Stats. 2005, ch. 300, § 4.) The complaint was filed on July 12, 2019. The deadline to serve the summons and complaint was therefore July 12, 2022, and the deadline to file a proof of service was September 12, 2022.

Steele was personally served with the summons and complaint on September 12, 2019. A proof of service was filed October 3, 2019. Service and proof of service were both timely. The motion is therefore denied as to Steele.

Dureau was personally served with the summons and complaint on September 11, 2019. However, a proof of service was not filed until Plaintiff attached it to his opposition August 10, 2023 (and thereafter filed it again as a standalone document on August 17, 2023). Dureau was timely served, but the proof of service was not timely filed. The motion is therefore granted as to Dureau.

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