Judge Randolph M. Hammock, Case Number: 20STCV44426, Date: 2024-04-03 Tentative Ruling

Plaintiff Vicky Silva filed her complaint in this action alleging violations of the Labor Code and related causes of action against Defendant Booftech, LLC dba 2020HIEFFECT. On October 13, 2021, Plaintiff added Ryan Derouchey and Sunshine Ways Inc. as doe defendants.

Defendants Alexis Gonzalez and Booftech now move for an order dismissing Defendant Ryan Derouchey due to Plaintiff’s failure to serve Derouchey within 3 years. Plaintiff opposed.

CCP section 583.210 requires the summons and complaint be served upon a defendant within three years after the complaint is filed. (Code Civ. Proc., § 583.210(a).) If service of the summons and complaint has not been served upon a defendant within the three-year statutory time period, the court shall dismiss the action. (Id., § 583.250.) “The three-year rule applies where the defendant seeking dismissal was served as a Doe defendant named in the original complaint, later amended to show his or her true name.” (Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1061.) Thus, “a plaintiff has three years from the date of filing the complaint to identify and serve a Doe defendant.” (Id.)

Defendants Alexis Gonzalez and Booftech, LLC, move to dismiss Defendant Ryan Derouchey from this action, based on Plaintiff’s failure to serve that Defendant within three years of the filing of the complaint.

Plaintiff filed this action on November 19, 2020. On October 13, 2021, Plaintiff filed an amended complaint adding Defendant Derouchey as a Doe Defendant. There is no dispute that the filing date of the initial complaint controls, and that this occurred more than three years before the filing of the instant motion. The parties also agree that Defendant has not been served.

In opposition, Plaintiff argues that dismissal is premature and unwarranted, asserting that Defendant has evaded service. Plaintiff contends she has made exhaustive attempts to personally serve Defendant, all to no avail. For the same reasons, and because Defendant may have notice of this lawsuit, Plaintiff argues Defendants should be equitably estopped from seeking dismissal.

These arguments fail. Under CCP section 583.210(a), the summons and complaint “shall be served upon a defendant within three years” from the filing of the complaint. The service and timing requirements of the statute “are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” (CCP § 583.250 [emphasis added].)

The statute expressly provides for an extension of time for the period where “[s]ervice, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff’s control.” (CCP § 583.240.)

The glaring issue with Plaintiff’s argument—and the reason that service cannot be deemed to have been “impossible, impracticable, or futile”—is that Plaintiff seemingly did not attempt to serve the Defendant through any alternative means of service, such as substitute service authorized by Code of Civil procedure section 415.20(b). Plaintiff admits she knew Defendant’s home address. (See Motion at 7: 15 [stating that Defendant’s home address “was verified by the process server in the front desk of the apartment building”].)

Plaintiff also argues, albeit only in passing, that the moving Defendants lack standing to move to dismiss Defendant Ryan Derouchey. (See Motion 2: 6.) At first glance, this argument logically does have some appeal.

Derouchey is not a moving party. The moving Defendants cite no authority authorizing them to seek Derouchey’s dismissal on his behalf. Indeed, the statute expressly provides that a motion to dismiss under that section does not constitute a general appearance in the action. (See CCP § 583.220(b).) This seems to contemplate that it is the Defendant who seeks dismissal that should bring the motion to dismiss as a specially appearing Defendant.

Fortunately for the moving party, the specific statute does, in fact, allow this type of dismissal to be made by them. CCP § 583.250 (a)(2) [“The action shall be dismissed on its own motion or on motion of any party interested in the action, whether named as a party or not, after notice to the parties.”] (Emphasis added.)

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.