Judge Mark A. Young, Case Number: 20STCV32994, Date: 2023-11-17 Tentative Ruling

Judge: Mark A. Young, Case: 20STCV32994, Date: 2023-11-17 Tentative Ruling

Case Number: 20STCV32994 Hearing Date: November 17, 2023 Dept: M

CASE NO.: 20STCV32994

MOTION: Motion to Quash Service and Dismiss

HEARING DATE: 11/17/2023

Legal Standard

Code of Civil Procedure (CCP) 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.”

CCP 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. CCP § 583.250¿provides that¿“(a)¿[i]f 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.

Analysis

Defendant Pinksy demonstrates that Plaintiff did not serve him within three years after the initial complaint was filed.

Here, Plaintiff filed his complaint on August 28, 2020, naming Pinsky as a defendant. Plaintiff provides a proof of service that indicates Pinsky was served on August 25, 2023, by way of substituted service. The Declaration of Due Diligence attached to the Proof of Service of Summons shows that Plaintiff attempted to serve Pinsky on August 17, 2023, and August 21, 2023. Plaintiff then substitute served Defendant on August 25, 2023. Per CCP section 415.20(a), service was complete 10 days later on September 4, 2023. That date falls outside of the three-year period. Dismissal is therefore mandatory.

Plaintiff argues that the instant motion was not timely served. Plaintiff notes that counsel first received notice of this motion 14 court days before the instant hearing. “It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.] This rule applies even when no notice was given at all. [Citations.] Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective.” (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930; see also Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7-8.)

Considering that this delay did not prejudice Plaintiff’s ability to oppose the substance of this motion, the Court will exercise its discretion to consider this motion. Further, the Court is obligated to halt these proceedings and dismiss this action on its own motion pursuant to CCP § 583.250(a)(2). Thus, the Court would still consider the merits of the motion to dismiss sua sponte.

Accordingly, Pinksy’s motion to dismiss is GRANTED.