Judge: Mark A. Young, Case: 19STCV25769, Date: 2023-08-08 Tentative Ruling
Case Number: 19STCV25769 Hearing Date: October 16, 2023 Dept: M
CASE NAME: Fattorini,
et al., v. Merriman, et al.
CASE NO.: 19STCV25769
MOTION: Motion
to Dismiss
HEARING DATE: 10/16/2023
Legal
Standard
Code of Civil Procedure section 583.130 provides that it
“is the policy of the state that a plaintiff shall proceed with reasonable
diligence in the prosecution of an action but that all parties shall cooperate
in bringing the action to trial or other disposition. Except as otherwise
provided by statute or by rule of court adopted pursuant to statute, the policy
favoring the right of parties to make stipulations in their own interests and
the policy favoring trial or other disposition of an action on the merits are
generally to be preferred over the policy that requires dismissal for failure
to proceed with reasonable diligence in the prosecution of an action in
construing the provisions of this chapter.”
(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.”
Because “Doe” defendants are
technically 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.
(Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 CA5th 1055,
1061.)
Analysis
Defendant SJD Ventures LLC
specially appears and moves to dismiss this action against it for failure to
serve within 3 years. The facts regarding service of process against SJD are
undisputed. Plaintiffs initiated this action by filing a complaint on July 19,
2019. Three years from July 19, 2019, would be July 19, 2022. Plaintiffs filed
a doe amendment naming SJD as Doe 7 on July 28, 2023. On September 12, 2023,
Plaintiffs served SJD’s counsel with a notice of acknowledgment of receipt. On
September 21, 2023, SJD’s counsel executed the notice. Thus, absent tolling, the
service on SJD was untimely.
Plaintiffs
raise several inapplicable grounds in an attempt to save the action against
SJD. First, Plaintiffs cite the automatic stay from Defendant Merriman’s bankruptcy
action and argue that the stay prevented Plaintiff from discovering SJD’s
identity. Generally, the automatic stay does not apply to entities other than
the debtor, including corporate affiliates, corporate officers, codefendants,
guarantors, or general partners. (Higgins v Superior Court (2017) 15
Cal.App.5th 973, 979–980 [automatic bankruptcy stay applied only to the debtor defendant
and did not toll 3-year period for service of summons and complaint on non-debtor
codefendant].) A stay of action against a co-defendant does not excuse delay in
serving process on other defendants, since the bankruptcy would not prevent
Plaintiff’s ability to serve co-defendants. (Id. at 981.) Logically, the
stay against Merriman did not affect Plaintiffs’ ability to serve the other
defendants and did not affect Plaintiff’s ability to conduct discovery on the
corporate structure of Defendant Warwick. In fact, Merriman is not directly
affiliated with the co-defendants. Thus, the Court does not find grounds for
tolling the service requirement based upon this bankruptcy.
Next, Plaintiffs assert the
“validity of service” was subject of litigation between the parties. (CCP §
583.240(c).) However, Plaintiff does not argue that the validity of the service
against SJD was the subject of litigation. Instead, Plaintiff points to the
litigation surrounding the service as to the other Warwick related entities.
Plaintiff reasons that this delayed the discovery of the correct
identity of SJD. However, the delay in the discovery of SJD’s identity is not
related to the validity of the service as to SJD. As noted, Plaintiffs
served SJD’s counsel with a notice of acknowledgment of receipt, which was
executed. The validity of that service is not in dispute. Based on the plain
language of the statute, the dispute as to Warwick/Sunset Wilcox would not toll
the three-year period.
Third, Plaintiffs argue that it was
“impossible, impracticable, or futile” to serve SJD during the three-year
period because of the COVID-19 pandemic. Impossibility, impracticability and
futility excuses are strictly construed. (Bishop v. Silva (1991) 234 Cal.App.3d
1317, 1321-1324.) Service must be “impossible, impracticable, or futile” due to
causes beyond plaintiff's control. (CCP § 583.240(d).) The statute specifically
provides that “[f]ailure to discover relevant facts or evidence is not a cause
beyond the plaintiff's control.” (CCP § 583.240(d).) A plaintiff claiming
impracticability must show reasonable diligence in attempting to locate and
serve defendant throughout the statutory period. (Adelson v. Hertz
Rent-A-Car (1982) 133 Cal.App.3d 221, 227.)
Plaintiffs argue that the pandemic
effectively shut down the nightclub industry for a year, precluding service on
Warwick, and delaying discovery of SJD. Plaintiffs provide notes from their
process servers memorializing that during 2020 it was impossible to serve Warwick
nightclub at its nightclub location because the nightclub had not been open
since the start of the pandemic. However, Plaintiff did serve the
co-defendants during this period, including service prior to July 2023.
Notably, Plaintiffs filed the case in mid-2019 - well before the beginning of
the pandemic. Plaintiffs do not explain their reasonable efforts to effect
service or discover SJD’s true identity during this pre-pandemic period. In
April 2020, Plaintiffs managed to serve JP Castro, Elias Wehbe, and Moncia
Maass. The case was being actively litigated throughout 2020 and 2021,
including the taking of depositions. Critically, Plaintiffs admit were able to
serve the Warwick on February 26, 2021, during the midst of the pandemic, and
well before the three-year period expired. Thus, the pandemic did not make it
impossible, impracticable or futile to effectuate service on the Warwick
related corporations or individuals. Furthermore, during this period of years,
Plaintiffs do not show what discovery efforts, if any, were made to determine the
corporate structure of the Warwick. Plaintiffs also do not demonstrate that the
pandemic made it impossible, impracticable or futile to conduct discovery.
Therefore, the Court cannot conclude that Plaintiffs were reasonably diligent
in attempting to locate and serve SDJ.
Lastly, Plaintiffs claim equitable
estoppel. Words or conduct by defendant that reasonably “lulls the plaintiff
into a false sense of security” regarding the statute, resulting in delay, may
estop defendant from later seeking a dismissal based on that delay. (Borglund
v. Bombardier, Ltd. (1981) 121 Cal.App.3d 276, 280 [discussing 5-year
statute].) Plaintiffs argue that their allegations of alter-ego somehow justify
estoppel here. Plaintiffs reason that Defendants are effectively the same, but
operated as Warwick, Sunset Wilcox, and SJD, and that they “hid” this fact from
Plaintiffs by (1) failing to raise the issue during motions for summary judgment,
and (2) avoiding their depositions.
Plaintiffs, however, fail to
explain why Defendants had the duty to pro-actively identify the existence of
SJD. Even if they did, they do not explain how this omission lulled Plaintiffs
into a false sense of security resulting in inaction. Simply put, this omission
is not “words or conduct” that plaintiff could reasonably rely on to cease
efforts to discover other alleged doe defendants. To the extent that their
avoidance of depositions could be construed as words or conduct relevant to
this issue, Plaintiffs fail to show their reasonable efforts to secure those
depositions or alternative discovery. Plaintiff never filed motions to compel
any depositions. Plaintiffs apparently never served discovery that would
require Defendants to reveal SJD until 2023.
Here, the record shows that Plaintiffs
failed to make reasonable efforts to discover the identity of SJD prior to the
three-year cutoff. This delay in service
on SJD is not excused by the attorney's investigations or attempts to procure
evidence. (County of Los Angeles v. Superior Court (1988) 203 Cal.App.3d
1205, 1209.) Indeed, a plaintiff's failure to discover the true identity of an
unserved “doe” defendant is not a sufficient excuse for delay in service
of summons on the real defendant. (Republic Corp. v. Superior Court
(1984) 160 Cal.App.3d 1253, 1256.)
Plaintiffs fail to show any tolling
applies. Accordingly, the motion to dismiss SJD is GRANTED.