Judge Michael E. Whitaker, Case BC717384 2022-09-19 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

Plaintiff Taaj Roussel sued defendant Thomas Brinkerhoff based on a motor vehicle collision. Defendant moves to dismiss Plaintiff’s action for failure to serve him within three years. Plaintiff opposes the motion.

Under Code of Civil Procedure section 583.210, “[t]he summons and compliant 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.) "If 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." (Code Civ. Proc., § 583.250, subd. (a).) "The requirements of this article are mandatory and are not subject to extension, or exception except as expressly provided by statute." (Code Civ. Proc., § 583.250, subd. (b).) The three-year rule under section 583.210 applies even where the defendant seeking dismissal was served as a "Doe" defendant named in the original complaint, which was later amended to show the defendant's true name. (See Lesko v. Superior Court (1982) 127 Cal.App.3d 476, 484-485.)

Under Code of Civil Procedure section 583.240, the time during which any of the following conditions existed is excluded from the computation of time within which service must be made: "(a) The defendant was not amenable to the process of the court. (b) The prosecution of the action or proceedings in the action was stayed and the stay affected service. (c) The validity of service was the subject of litigation by the parties. (d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision." (Code Civ. Proc., § 583.240.)

Here, Plaintiff filed the complaint on August 10, 2018. Plaintiff’s proof of service filed on December 6, 2021, indicates personal service of the summons and complaint on Defendant on November 30, 2021, which is three years, three months, and twenty days after Plaintiff filed the complaint. (See December 6, 2021 Proof of Service.) Accordingly, the Court concludes that Plaintiff failed to serve Defendant within three years after the action was commenced against him.

In opposition, Plaintiff first argues that she has properly served Defendant within the three-year limit because, under Code of Civil Procedure section 473, subdivision (b), the prosecution of Plaintiff’s case was stayed from February 10, 2020, until July 9, 2020, due to the Court’s respective dismissal and reinstatement of the litigation. The Court notes that nothing in Section 473, subdivision (b) provides for the extension of time in which to serve a defendant under Section 583.210. Section 473, subdivision (b) does, however, state, “this section shall not lengthen the time within which an action shall be brough to trial pursuant to Section 583.310.” (Code Civ. Proc., § 473, subd. (b).) Thus, absent express language indicating the Legislature’s intent to extend the three-year limit for service under Section 583.210, and in light of express language that it does not extend the five-year limit to bring a case to trial under Section 583.310, the Court finds that nothing in Section 473, subdivision (b) would operate to toll the time for service under Section 583.210, as Plaintiff suggests.

Plaintiff next argues that service on Defendant was impossible and impracticable from February 10, 2020, until July 9, 2020, due to causes beyond Plaintiff’s control – that is, the period from the Court’s dismissal of the case to that of reinstatement. The excuses for impossibility, impracticability, and futility are strictly construed. (See Bishop v. Silva (1991) 234 Cal.App.3d 1317, 1321-1324.) The Court of Appeal has held that where a court enters an order of dismissal due to causes not within plaintiff’s control – e.g., a mistaken entry of order of dismissal by the court – the time for service under Section 583.210 would then be tolled by the period during which the case was dismissed per Code of Civil Procedure section 583.240, subdivision (d). (Graf v. Gaslight (1990) 225 Cal.App.3d 291, 297-298 (disapproved on other grounds by Watts v. Crawford (1995) 10 Cal.4th 743, 758) (hereafter, “Graff”).) But the Court finds that Plaintiff has not established that the Court’s entry of its February 10, 2020 Order of Dismissal was due to causes beyond Plaintiff’s control.

Plaintiff next argues that Defendant is estopped from seeking dismissal as he has filed a responsive pleading and engaged in discovery. The Court notes that Plaintiff’s argument conflates the notions of estoppel and waiver. Nevertheless, the doctrine of estoppel may preclude a defendant from seeking dismissal when defendant, by words or conduct, caused plaintiff reasonably to forgo efforts to serve defendant within the statutory period. (Tresway Aero, Inc. v. Superior Court (1971) 5 Cal.3d 431, 439-440.) Plaintiff does not argue that Defendant caused her to forgo efforts to serve Defendant within the statutory period. In contrast, a defendant may be found to have waived the right to seek dismissal where he or she voluntarily elects to litigate the action despite knowing that plaintiff’s service of summons was untimely. Put differently, “[w]aiver refers to the act, or the consequences of the act, of one side only, while estoppel is applicable where the conduct of one side has induced the other to take such a position that it would be injured if the first should be permitted to repudiate its acts.” (Brookview Condominium Owners’ Association v. Heltzer Enterprises-Brookview (1990) 218 Cal.App.3d 502, 512-513 (hereafter, “Brookview”.)

In its February 10, 2020 Minute Order, the Court ordered dismissal of the action for Plaintiff’s failure to appear for trial on that date. (See February 10, 2020 Minute Order.) In her motion to set aside and vacate the Court’s February 10, 2020 Order of Dismissal filed on April 14, 2020, Plaintiff premised her request for relief upon the mandatory provision of Section 473, subdivision (b) for the mistake, inadvertence, surprise, or excusable neglect of counsel for Plaintiff. In connection with that motion, counsel for Plaintiff, D. Hess Panah (“Panah”) filed a sworn affidavit attesting to his office’s failure to calendar the pertinent hearing and trial date, thereby constituting mistake, inadvertence, surprise or neglect on his part. Plaintiff does not offer further argument in connection with this motion to show that the Court’s February 10, 2020 Order of Dismissal for Plaintiff’s failure to appear for trial on that date was otherwise due to circumstances beyond Plaintiff’s control. As the Court of Appeal explained in Graff, failures or deficiencies in an attorney’s obligations with respect to the management of the case do not constitute reasons beyond plaintiff’s control to establish grounds for tolling and relief under Code of Civil Procedure section 583.240, subdivision (d). (See Graff, supra, 225 Cal.App.3d at p. 297 [finding that counsel’s failure to file a change of address of counsel with the court, failure to investigate the results of court appearances made by co-counsel on plaintiff’s behalf, and failure to discover that the court had dismissed the action were all circumstances within plaintiff’s control for the purposes of Section 583.240].) Consequently, the Court finds that Plaintiff has failed to establish a basis for relief under Section 583.240, subdivision (d).

In addition, Plaintiff argues that public policy supports denial of Defendant’s motion, and the Court otherwise retains broad discretion not to dismiss the action and is under no obligation to do so. Plaintiff is incorrect. Dismissal for failure to serve in conformance with Code of Civil Procedure section 583.210 is mandatory. (Code Civ. Proc., § 583.250, subd. (b).) Plaintiff advances numerous cases in support of its argument that all concern instance of a Court’s discretionary power to dismiss an action, such as for failure to prosecute within two years under Code of Civil Procedure section 583.420. Because Defendant moves for dismissal under Code Civil Procedure § 583.250, the Court is without discretion to deny the motion absent other statutory grounds. (Code Civ. Proc., § 583.250, subd. (b).)

On July 27, 2022, the Court continued the hearing on the motion and ordered the parties to file and serve supplemental memoranda of points and authorities addressing whether Defendant forfeited or waived his right to seek dismissal of the action under Section 583.210.

In her supplemental memorandum, Plaintiff contends that Defendant either “stipulated,” waived or forfeited his right to seek dismissal of the action because following service of the summons and complain on November 30, 2021, Defendant filed an answer to the complaint and a cross-complaint against Defendant Fredy Hernandez in December 2021. Further, Plaintiff asserts that Defendant then engaged in discovery and made a court appearance before filing the subject motion on June 24, 2022.

Code of Civil Procedure section 583.220 provides that “[t]he time within which service must be made pursuant to this article does not apply if the defendant enters into a stipulation in writing or does another act that constitutes a general appearance in the action.”

First, the Court finds that neither Plaintiff nor Defendant have advanced evidence that the parties entered into a stipulation extending Plaintiff’s time to serve the summons and complaint under Section 583.210. Second, although Plaintiff is correct that Defendant made a general appearance in the action by filing an answer to the complaint before filing the motion to dismiss, Defendant is not precluded from seeking dismissal under Section 583.210. (See Brookview, supra, 218 Cal.App.3d 502.)

In Brookview, the plaintiff had commenced the action on October 5, 1981 but the plaintiff did not name the defendant (Heltzer Enterprises) as a Doe Defendant until June 6, 1985. On October 21, 1985, the defendant filed an answer to the operative complaint and thereafter filed a motion dismiss the action based upon the plaintiff’s failure to serve the summons and complaint within three years of commencing the action. (Brookview, supra, 218 Cal.App.3d at p. 507.) The plaintiff opposed the motion to dismiss claiming in part that the defendant made a general appearance in the action by filing an answer and cross-complaint, and participating in discovery and pre-trial conferences and hearings. And under Section 583.220, the plaintiff argued that the time period in which to serve the summons and complaint (three years) was inapplicable. (Ibid.) The trial court granted the motion notwithstanding the defendant’s general appearance in the action.

On appeal, the appellate court affirmed the trial court's order granting the motion to dismiss. “To prevent dismissal, any claimed general appearance must have occurred within the mandatory three-year period. An appearance made thereafter does not deprive a defendant of his right to dismissal. As the Supreme Court has continually held, even if Heltzer Enterprises' conduct could be deemed to be a general appearance, dismissal is mandatory because a general appearance after the three years had run did not operate to deprive a defendant of his right to a dismissal.” (Brookview, supra, 218 Cal.App.3d at p. 509 [cleaned up]; cf. Wong v. Armstrong World Industries, Inc. (1991) 232 Cal.App.3d 1032, 1035 [“a general appearance during the extended three-year-and-sixty-day time period under section 583.210 would also prevent dismissal”].)

Here, as set forth above, the three year period elapsed on August 10, 2021, but Defendant did not make its general appearance until December 30, 2021 when it filed an answer to the operative complaint.[1] Thus, Defendant’s general appearance did not occur within the three year period following the commencement of Plaintiff’s action, and further, he is not prohibited from seeking to dismiss the action under Section 583.210.

“Waiver refers to the act, or the consequences of the act, of one side only, while estoppel is applicable where the conduct of one side has induced the other to take such a position that it would be injured if the first should be permitted to repudiate its acts. To support a finding of waiver, there must be an existing right, benefit, or advantage, actual or constructive knowledge of the right's existence, and either an actual intention to relinquish it or conduct so inconsistent with any intent to enforce the right as to induce a reasonable belief that it has been relinquished. The waiver of a legal right cannot be established without a clear showing of intent to give up such right. The burden is on the party claiming the waiver to prove it by evidence that does not leave the matter doubtful or uncertain and the burden must be satisfied by clear and convincing evidence that does not leave the matter to speculation.” (Brookview, supra, 218 Cal.App.3d at pp. 512–513 [cleaned up].)

In Brookview, the plaintiff argued that the defendant (Heltzer Enterprises) waived its right to seek dismissal of the action, because of the untimely service of the summons and complaint, by interjecting itself into the litigation. (Brookview, supra, 128 Cal.App.3d at p. 513.) The trial court’s finding of no waiver by the defendant was upheld on appeal. (Ibid.) In affirming the trial court’s determination, the Court of Appeal noted that the defendant “[d]id not engage in any act which misled appellant into failing to timely serve the summons and complaint, and was under no duty to inform appellant that it had not been timely served and was not waiving its right to dismissal. Here, [the defendant] simply did not engage in any act which led appellant to believe the time for service had been tolled.” (Id. at p. 514 [cleaned up].)

Here, Plaintiff advanced as evidence the Declarations of D. Hess Panah and Vania Nemanpour, counsel for Plaintiff, in support of the opposition to the motion. In particular, Panah states that Defendant filed an answer on December 30, 2021, never met and conferred about the subject motion, and has conducted discovery in the case. (Declaration of D. Hess Panah, p. 10.) Yet neither declaration constitutes clear and convincing evidence that Defendant intended to give up his right to seek dismissal of the action under Section 583.210. And like in Brookview, the evidence before the Court does not indicate that Defendant caused Plaintiff to believe he was waving his right to seek dismissal.

Equally important, Plaintiff has not advanced any evidence to establish that Defendant engaged in any act which misled Plaintiff into failing to timely serve the summons and complaint, and Plaintiff has not presented authority which compelled Defendant to inform Plaintiff it had not been timely served and was not waiving its right to seek dismissal. In short, Plaintiff has not met her burden to show that Defendant waived his right to seek dismissal of the action per Section 583.210.

“The terms “waiver” and “forfeiture” long have been used interchangeably. As the United States Supreme Court has explained, however, waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right. Thus, it is most accurate to characterize the issue as whether a defendant forfeits the right to object to venue by failing to timely raise such an objection prior to trial.” (People v. Simon (2001) 25 Cal.4th 1082, 1097 [cleaned up]; see also Osman v. Superior Court (2005) 134 Cal.App.4th 32, 36.)

Here, in light of holding in Brookview, the Court finds that Defendant did not forfeit its right to seek dismissal of the action because Defendant’s motion is timely notwithstanding Defendant’s general appearance in the action.

Therefore, for all of the reasons stated above, the Court grants Defendant’s motion to dismiss per Code of Civil Procedure section 583.250, and dismisses Plaintiff’s complaint against Defendant with prejudice.

[1] The time duration between the two dates is 142 days (August 10, 2021 – December 30, 2021).

Plaintiff Taaj Roussel sued defendant Fredy Hernandez based on a motor vehicle collision. Defendant moves to dismiss Plaintiff’s action for failure to serve him within three years. Plaintiff opposes the motion.

Here, Plaintiff filed the complaint on August 10, 2018. Plaintiff’s proof of service filed on May 31, 2022, indicates personal service of the summons and complaint on Defendant on May 25, 2022, which is three years, nine months, and fifteen days after Plaintiff filed the complaint. (See May 31, 2022 Proof of Service.) Accordingly, the Court concludes that Plaintiff failed to serve Defendant within three years after the action was commenced against him.

In opposition, Plaintiff argues that there are three distinct time periods which must be excluded from computing the time within which Plaintiff was compelled to serve Defendant with the summons and complaint. The Court will address each time period in turn.

Foremost, the Court notes that there no stay was issued in this action, and thus Section 583.240, subdivision b, is inapplicable.

First, Plaintiff argues that the period of time in which the parties litigated the initial service of the summons and complaint on Defendant, which was the subject of a motion to quash filed by Defendant, should be excluded. Plaintiff’s argument is without merit. The exclusion under Section 583.240, subdivision (c), is inapposite when the validity of service became the subject of litigation after the three-year period lapsed. Here, the three-year period lapsed on August 10, 2021, but Defendant did not file the motion to quash the initial service of the summons and complaint until November 17, 2021 which is after the three-year period expired. (See Graf v. Gaslight (1990) 225 Cal.App.3d 291, 296 [“Subdivision (c) is facially inapplicable. The validity of service became the subject of litigation only after the three year time period for service of process had expired”], disapproved on another ground in Watts v. Crawford (1995) 10 Cal.4th 743.)

Second, Plaintiff argues Defendant was not amenable to service because he was actively evading service of the summons and complaint. Therefore, the time period in which Defendant was not “amenable to service” should be excluded in calculating the time to serve under Section 583.210. In part, Plaintiff’s assertions that Defendant was evading service was addressed in the Court’s ruling on Defendant’s motion to quash. (See Minute Order of March 11, 2022.) Nonetheless, Plaintiff’s contention is faulty.

“[W]hether a party was “amenable to process” would refer to an examination of whether that party was subject to being served under applicable constitutional and statutory provisions. Nothing in the several Court of Appeal decisions construing the amendment of former section 581a persuades us that the phrase “amenable to the process of the court” was intended to, or should, refer instead to a defendant's reasonable availability, as a practical matter, for service of process.” (Watts v. Crawford (1995) 10 Cal.4th 743, 758.) Further, the California high court, held that “[t]he finding that defendant was not reasonably available for service of process, other than by publication, was not the equivalent of a finding that defendant was not amenable to the process of the court within the meaning of section 583.240, subdivision (a).” (Id. at p. 761.) In other words, a defendant is amenable to service notwithstanding a plaintiff having to publish service of the summons and complaint because either a defendant is evading service, a defendant’s whereabouts are unknown or a defendant’s residence or place of business is not accessible to the public.[1]

Here, Plaintiff has not advanced any constitutional or statutory provision which would make Defendant not “amenable to process.” Plaintiff argument rests squarely with her contention that “Fredy Hernandez actively evaded service and even convinced his neighbors to fabricate stories of him moving out. Furthermore, Plaintiffs registered process server could not gain access to the locked gates, which is accessible by a side remote.” (Opposition, p. 7.) Such acts if true would support a request to serve the summons and complaint on Defendant by publication, but does not equate to Defendant being unamenable to the process of the court.

Lastly, Plaintiff argues that excluded from the computation of time under Section 583.210 is the time period in which service of the summons and complaint on Defendant was impossible and impracticable. Subdivision (d) of Section 583.240 states in full: “Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision.” (Code Civ. Proc., § 583.240, subd. (d), emphasis added.)

Again, Plaintiff’s argument rests on the assertion that Defendant was evading service, Defendant’s whereabouts were unknown to Plaintiff and Defendant’s residence was not accessible to Plaintiff’s process server. As noted above, serving Defendant by publication was not beyond Plaintiff’s control, and whether Plaintiff failed to marshal relevant facts or evidence to support a request for service by publication “is not a cause beyond the plaintiff’s control.” In short, notwithstanding Plaintiff’s assertions, service on Defendant was not “impossible” or “impracticable.”

[1] “In the instant case respondent was served by publication after the three-year period for service established by section 583.210 had expired. The current controlling statute does not excuse failure of service within three years based on defendants' absence from the state or concealment, but only when they are not amenable to the court's process. Consequently upon respondent's motion to dismiss, appellant was required to demonstrate that respondent was not amenable to the process of the court during some portion of the applicable three-year period. Appellant's declaration in support of her order of publication does not suggest that respondent was not amenable to process. To the contrary, it implies that she was amenable to service by publication. It follows, therefore, that the order of publication does not stand as a “binding adjudication” that respondent was not amenable to process, and constituted no impediment to her motion to dismiss for untimely service.” (Perez v. Smith (1993) 19 Cal.App.4th 1595, 1599–1600 [cleaned up].) In Perez v. Smith, the plaintiff argued that the defendant was not “amenable to service” other than by publication because the defendant’s current address was unknown and attempts to locate the defendant were unsuccessful. (Id. at pp. 1596-1597.)

DEPARTMENT	32
HEARING DATE	July 27, 2022 – CONTINUED TO SEPTEMBER 19, 2022
CASE NUMBER	BC717384
MOTION	Motion to Dismiss for Failure to Serve
MOVING PARTY	Defendant Thomas Brinkerhoff
OPPOSING PARTY	Plaintiff Taaj Roussel

DEPARTMENT	32
HEARING DATE	September 19, 2022
CASE NUMBER	BC717384
MOTION	Motion to Dismiss for Failure to Serve
MOVING PARTY	Defendant Fredy Hernandez
OPPOSING PARTY	Plaintiff Taaj Roussel