Judge Lynne M. Hobbs, Case Number: 20STCV01314, Date: 2023-05-24 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV01314, Date: 2023-05-24 Tentative Ruling

Case Number: 20STCV01314 Hearing Date: September 26, 2023 Dept: 30

ANNA NGUYEN vs CITY OF LOS ANGELES, et al.

Motion to Dismiss Action against Defendant Hollywood Historic Trust

Ruling: Motion to Dismiss Action against Defendant Hollywood Historic Trust is granted. Moving party to give notice.

Discussion

Defendant brings this motion on the grounds that the complaint was filed on January 10, 2020, but the service of the summons and complaint were not effectuated until July 28, 2023 at the earliest, which is more than three years after the action was commenced, making the action subject to mandatory dismissal pursuant to Code of Civil Procedure § 583.250. (Ayotte Decl. ¶ 3.) Further, Defendant asserts that none of the various exceptions or exemptions available under Code of Civil Procedure § 583.240 are applicable here as Plaintiff cannot claim that Defendant was not amenable to service, prosecution of the action was not stayed, nor that service of the summons and complaint was impossible, impracticable, or futile.

In opposition, Plaintiff argues that Defendant’s motion must be denied because Defendant made a general appearance in the action. Plaintiff also relies on equitable estoppel to prevent dismissal. Plaintiff claims she believed in good faith that service of process had been effectuated upon Defendant and that legal representation had been engaged in the subject action since Defendant made multiple representations to Plaintiff’s counsel over the course of one year preceding the filing of this instant motion, that an answer would be filed by Defendant’s legal counsel. Specifically, Plaintiff’s counsel contacted Jeffrey C. Briggs, Esq. (“Mr. Briggs”), a member of the board for Defendant Hollywood Historic Trust, via email and inquired as to whether Mr. Briggs would be willing to accept service on behalf of Defendant. A copy of the summons, complaint and Notice and Acknowledgement of Receipt were attached to Plaintiff’s email. (Reyes Decl. ¶ 2, Exhib. 2). On December 17, 2021, Mr. Briggs responded to Plaintiff’s email indicating that the Trust would submit the complaint to its general liability carrier in order to appoint legal counsel. (Id. ¶ 3, Exhib. 3). Mr. Briggs notified Plaintiff’s counsel on March 7, 2022, that the Trust had not yet heard back from its insurance carrier regarding a decision as to legal counsel but that Mr. Briggs “could have an answer on file by the 18th of March.” (Id. ¶ 6, Exhib. 5). Mr. Briggs expressly instructed Plaintiff’s counsel to represent to the court that Mr. Briggs was “being engaged” to the matter. (Id.). Mr. Briggs further represented to Plaintiff’s counsel that even if he was not the attorney appointed by Defendant’s carrier, that the carrier’s legal counsel would “be on board in the next ten days.” (Id.) As a result of these representations, Plaintiff claims she did not seek to take Defendant’s default. Further, she claims these representations constitute a general appearance and trigger the exception to the three year rule under Code of Civil Procedure § 583.210.

In reply, Defendant argues that there were communications between Defendant’s counsel and Plaintiff’s counsel which reflect that Defendant had not been served with the complaint and infer that Defendant never accepted service. For instance, on Jan. 4, 2023, Defense counsel emailed Plaintiff’s counsel Mr. Smith and, among other things, stating again that his office is representing Defendant, that there is no proof of service or notice and acknowledgement on file, and that if the Plaintiff wishes to serve Defendant, Mr. Ayotte will request authority to accept service. Paralegal Ms. Boardman responded to the email on Jan. 11, 2023, and offered to set up a phone call with Plaintiff’s attorney David Azizi, Esq. A phone conference was scheduled for Jan. 13, 2023, but discussions were never completed since Mr. Azizi terminated the call after 4 minutes and never called back. (Ayotte Decl., ¶ 7, Exhib. 6)Further, Defendant argues that there is no evidence that Defendant made a general appearance in this case. Notwithstanding Plaintiff’s attempts to portray an email with attorney Jeffrey Briggs, Esq. as constituting such, there is no written agreement acknowledging service of the complaint or an agreement to appear as Defendant did not file any pleadings before filing the subject Motion to Dismiss, did not participate in any depositions, did not participate in written discovery, and was not included in Plaintiff’s proofs of service of any pleadings or discovery prior to the subject Motion to Dismiss.As to equitable estoppel, Defendant states that the Opposition reveals a gap in communications with Mr. Briggs from March 7, 2022, to January 3, 2023, during which time the Plaintiff took no action to follow up on the alleged representation made by Mr. Briggs. Following Defense counsel’s January 4, 2023 email, Plaintiff took no action in response to the offer from defense counsel asking for authority to accept service on behalf of Defendant. Defendant states that the Opposition ignores the fact that there were six emails from defense counsel expressly asking if Defendant had been served between Feb. 25, 2022 and Jan. 4, 2023, and which served as notice to Plaintiff’s attorneys’ that Defendant was not served.

The Court finds that Plaintiff fails to show that Defendant made a general appearance. Mere communications between Plaintiff’s counsel and Mr. Briggs do not constitute a general appearance. “A general appearance occurs where a party, either directly or through counsel, participates in an action in some manner which recognizes the authority of the court to proceed. It does not require any formal or technical act.” (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52.) Mr. Brigg was not yet counsel at the time. Brigg’s representations which state that Defendant “could have an answer on file by the 18th of March” (Reyes Decl. ¶ 6, Exhib. 5) and Mr. Brigg’s instruction to Plaintiff’s counsel to represent to the court that Mr. Briggs was “being engaged” to the matter are insufficient to show that Defendant recognized the court’s authority to proceed. (Id.) Although a formal or technical act is not required for general jurisdiction, these representations alone do not indicate a participation in the lawsuit and therefore do not constitute actions which would bar dismissal.

Likewise, the Court finds that Defendant’s conduct is not sufficient to invoke the doctrine of equitable estoppel. The following cases show when a court denied dismissal on the grounds of estoppel: “(See e.g. Griffis v. S.S. Kresge Co. (1984) 150 Cal.App.3d 491, 197 Cal.Rptr. 771 [defense counsel withheld information or was overtly false regarding statutory time period]; Borglund v. Bombardier, Ltd., supra, 121 Cal.App.3d 276, 175 Cal.Rptr. 150 [defendant breached promise not to seek dismissal after statutory period]; State Air Resources Bd. v. Superior Court (1979) 93 Cal.App.3d 803, 155 Cal.Rptr. 726 [Petitioner acknowledged service, then moved to dismiss for failure to serve attorney general]; Tresway Aero, Inc. v. Superior Court, supra, 5 Cal.3d 431, 96 Cal.Rptr. 571, 487 P.2d 1211 [defendant served with ineffective summons requested additional time to plead, resulting in plaintiff's failure to properly serve complaint within statutory period]; Wyoming Pacific Oil Co. v. Preston (1958) 50 Cal.2d 736, 329 P.2d 489 [defendant's intentional concealment frustrated timely service].)” (Brookview Condominium Owners' Assn. v. Heltzer Enterprises-Brookview (1990) 218 Cal.App.3d 502, 511.) Here, there is no evidence whatsoever that Defendant or its attorneys made any representations to Plaintiff, or engaged in any conduct which “lulled [Plaintiff ] ‘into a false sense of security resulting in inaction’, prior to the running of the three year date. (Tejada v. Blas, supra, 196 Cal.App.3d at p. 1341, 242 Cal.Rptr. 538.).” (Id. at p. 512.) Indeed, Defense counsel sent 6 emails expressly asking if Defendant had been served between Feb. 25, 2022 and Jan. 4, 2023. Any prior confusion as to Mr. Brigg’s representations should have been cleared with Defense counsel’s communications regarding the lack of service. Thus, Defendant did not engage in an act which would estop it from seeking dismissal.

Conclusion

Accordingly, the Court finds that dismissal is proper and Defendant’s actions do not constitute general appearance nor is it estopped from seeking dismissal. Thus, the motion to dismiss is GRANTED.