Judge: Maurice A. Leiter, Case: 19STCV43588, Date: 2024-03-19 Tentative Ruling

Case Number: 19STCV43588    Hearing Date: April 4, 2024    Dept: 54

Hearing Date: April 4, 2024

Department 54, Judge Maurice Leiter

Motion to Dismiss Pursuant to CCP § 583.250  

Moving Party: Specially Appearing Defendant Vikram Nair  

Responding Party: Plaintiff Mark Merrens

T/R:    DEFENDANT’S MOTION TO DISMISS IS GRANTED.

            DEFENDANT to notice. 

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

            The Court considers the moving papers, opposition, and reply.

BACKGROUND

            On December 4, 2019, Plaintiff Mark Merrens sued Defendants Viking River Cruises, Inc., Rostislav Karchemsky, and Vikram Nair, asserting fourteen causes of action including FEHA violations, whistleblower retaliation, and wrongful termination.

            On January 26, 2024, Defendant Nair filed a Motion to Quash Service of Summons. On March 19, 2024 the Court granted the Motion to Quash.

            Before the Court is Defendant Nair’s Motion to Dismiss pursuant to CCP § 583.250. Nair asserts that Plaintiff did not serve him with the Complaint within three years of filing this action.  

ANALYSIS

“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.” (Code Civ. Proc., § 583.210, subd. (a).) If a party is not served with the summons and complaint within three years of the action being commenced: “(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.” (Code Civ. Proc., § 583.250, subds. (a)(1)-(2).)

Nair declares that he was not served with the summons and/or complaint until February 16, 2024, 4 years, 1 month and 28 days after the filing of the complaint on December 4, 2019.

            In opposition to the motion, Plaintiff declares that on December 10, 2020, the entire action was stayed pending binding arbitration. Plaintiff also states that despite best efforts, Plaintiff was unable to serve Defendant Nair until February 16, 2024. Plaintiff contends that the service period was tolled pursuant to CCP § 583.240(a) because Nair was not amenable to service from December 4, 2019 to December 27, 2023 or February 16, 2024.

The fact that a defendant is absent from the state or concealed within the state to avoid service does not warrant tolling under CCP § 583.240(a). (Watts v. Crawford (1995) 10 Cal.4th 743, 758, fn. 13.) A person may be served outside of the State of California. (Code Civ. Proc., § 415.40.) “California grants its courts the power to assert personal jurisdiction over out-of-state parties to the maximum extent that the state and federal Constitutions allow.” (Doe v. Damron (2021) 70 Cal.App.5th 684, 689.) And Plaintiff does not present any evidence that Defendant Nair was not amenable to service of process. Plaintiff’s counsel merely declares that “[d]espite Plaintiff’s best efforts, Plaintiff was unable to serve Vikram Nair.” (Beck Decl., ¶ 3.)

Plaintiff also argues that the service period was tolled because the entire action was stayed. But the stay did not stay service. The Court notes that, in Plaintiff’s Motion to Lift Stay, Plaintiff took the opposite position – that the stay did not stay service on Nair. (See Motion to Lift Stay at p. 5:20-7:4.) Plaintiff is judicially estopped from now taking the opposite position. “Judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or earlier proceeding.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181.) “[J]udicial estoppel is especially appropriate where a party has taken inconsistent positions in separate proceedings.” (Ibid.)

Plaintiff served Defendant Nair with the summons and complaint more than four years after this action commenced. Plaintiff has not met his burden in showing excusable delay. “The dismissal statute gives a remedy for delay in prosecution of an action, and makes it mandatory upon the court to dismiss it after three years, unless the defendant is absent or conceals himself.” (Pease v. City of San Diego (1949) 93 Cal.App.2d 706, 709, emphasis in original.)

Defendant Nair is entitled to recover his costs. A prevailing party includes a defendant in whose favor a dismissal is entered. (Code Civ. Proc., § 1032, subd. (a)(4).) “[A] prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) Nair may file and serve a Memorandum of Costs pursuant to California Rules of Court, Rule 3.1700.