Judge: Robert B. Broadbelt, Case: 18STCV10378, Date: 2023-05-10 Tentative Ruling

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Case Number: 18STCV10378    Hearing Date: May 10, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Specially appearing defendants Andrew M. Smith and Victoria L. Smith, as trustees of the Andrew M. Smith and Victoria L. Smith Revocable Trust dated March 7, 2007

RESPONDING PARTIES:    (1)  Plaintiff and cross-defendant Paul David Relf

                                                (2)  Cross-defendant Rhonda Relf

Motion to Dismiss

The court considered the moving, opposition, and reply papers filed in connection with this motion.

REQUEST FOR JUDICIAL NOTICE

The court grants plaintiff and cross-defendant Paul David Relf’s request for judicial notice as to Exhibits 1-2.  (Evid. Code, § 452, subd. (c); Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194 [“A recorded deed is an official act of the executive branch, of which this court may judicial notice”].)

The court grants plaintiff and cross-defendant Paul David Relf’s request for judicial notice as to Exhibits 3-9.  (Evid. Code, § 452, subd. (d).)

DISCUSSION

Specially appearing defendants Andrew M. Smith and Victoria L. Smith, as trustees of the Andrew M. Smith and Victoria L. Smith Revocable Trust dated March 7, 2007 (“Defendants”), move the court for an order dismissing the complaint filed by plaintiff Paul David Relf (“Plaintiff”) on the ground that Plaintiff did not properly serve the Amendment to Complaint naming them as defendants to the First Amended Complaint, summons, and operative complaint within three years of the date that Plaintiff filed this action.

The court grants Defendants’ motion.  (Code Civ. Proc., §§ 583.210, subd. (a), 583.250, subd. (a).)

First, the court finds that Plaintiff did not serve Defendants with the Summons and First Amended Complaint in this action within three years from December 31, 2018, i.e., the date on which the original Complaint was filed.

“A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action.”  (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.)  “The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant.”  (Code Civ. Proc., § 583.210, subd. (a).)  “[A]n action is commenced at the time the complaint is filed.”  (Ibid.)  If service is not made within this time, “[t]he action shall be dismissed by the court . . . 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)(2).)

The parties do not dispute that, on February 1, 2021, Plaintiff filed an Amendment to Complaint which amended Plaintiff’s complaint by substituting Defendants, as trustees of the trust, for the fictitious name Doe 1 wherever it appears in the complaint.  The Proof of Service states that the amendment was served on Defendants through their counsel on February 1, 2021 by email.  (Feb. 1, 2021 Amendment to Complaint, p. 2, Proof of Service.)  However, the Proof of Service does not establish that Defendants, in their capacities as trustees of the trust, were served with the summons and First Amended Complaint.  Instead, the Proof of Service states only that the “DOE AMENDMENT” was served on Defendants.  Plaintiff has not presented argument or evidence showing that Defendants were served with the summons and complaint in this action following Plaintiff’s filing of the Amendment to Complaint.

“[T]he general rule [provides] that ‘If the complaint and summons designate the defendant in a representative capacity, he should be so served.’”  (Bank of America Nat. Trust & Sav. Ass’n v. Carr (1956) 138 Cal.App.2d 727, 736.)  Plaintiff has not presented any evidence showing that Defendants, in their representative capacities as trustees of the Andrew M. Smith and Victoria L. Smith Revocable Trust dated March 7, 2007, were served with the summons and operative complaint in this action on February 1, 2021, or at any other time before the expiration of the three-year deadline.  (Code Civ. Proc., § 583.210, subd. (a).)

The court notes that defendants Andrew M. Smith and Victoria L. Smith, in their individual capacities, have made general appearances in this action (1) as to Andrew M. Smith, by filing (i) an answer to Plaintiff’s First Amended Complaint, and (ii) filing a Cross-Complaint against Plaintiff and cross-defendant Rhonda Relf, and (2) as to Victoria L, Smith, by filing a Cross-Complaint against Plaintiff and cross-defendant Rhonda Relf.  There is “an exception to the three-year period for service where ‘the defendant enters into a stipulation in writing or does another act that constitutes a general appearance.’”  (Brookview Condominium Owners’ Assn. v. Heltzer Enterprises-Brookview (1990) 218 Cal.App.3d 502, 508; Code Civ. Proc., § 583.220.)  Here, although Defendants have made a general appearance in this action, they have done so only as individuals, and not in their capacities as trustees.  Thus, this exception does not apply.

Second, the court finds that Plaintiff has not established that Defendants waived their right to receive service of the Amendment to Complaint, summons, and operative complaint in the manner required for service of summons.  (Code Civ. Proc., § 413.10 et seq.)

“California law defines waiver as the intentional relinquishment or abandonment of a known right or privilege.”  (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 745.)  Thus, “[w]aiver requires an existing right, the waiving party’s knowledge of that right, and the party’s ‘actual intention to relinquish that right.’”  (Lynch v. California Coastal Com. (2017) 3 Cal.5th 470, 475.)

Plaintiff contends that Defendants’ “lack of action” in response to the Amendment to Complaint establishes the implied waiver of any right to service thereof in the manner required for service of summons.  The court disagrees.  Defendants’ election not to file an answer or other responsive pleading does not establish that Defendants intended to waive their right to be personally with the Amendment to Complaint, summons, and complaint in this action in the manner required for service of summons. 

The court notes that Plaintiff has also submitted the declaration of his counsel, in which counsel states that Defendants’ attorney “requested orally by telephone that [Plaintiff’s counsel] not [personally] serve” Defendants with the Amendment to Complaint.  (Zuiderweg Decl., ¶ 2.)  However, this conversation took place in 2022, after the expiration of the three-year deadline by which to serve Defendants, and therefore cannot constitute an intentional relinquishment of their right to be served with the summons and complaint in accordance with the Code of Civil Procedure.

Third, the court finds that Plaintiff has not established that the doctrine of equitable estoppel precludes Defendants from moving to dismiss this action.

“Waiver differs from estoppel, which generally requires a showing that a party’s words or acts have induced detrimental reliance by the opposing party.”  (Lynch, supra, 3 Cal.5th at pp. 475-476.)  “Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.”  (Krolikowski v. San Diego City Employees’ Retirement System (2018) 24 Cal.App.5th 537, 564-565.) 

Plaintiff contends, as above, that equitable estoppel applies because Defendants failed to respond to the Amendment to Complaint or otherwise challenge service, and because Defendants’ counsel told Plaintiff’s counsel not to personally serve Defendants with the Amendment to Complaint.  The court finds that Plaintiff has not established that equitable estoppel bars Defendants from bringing this motion to dismiss based on lack of service because (1) the failure to file a responsive pleading does not show that Defendants intended their conduct to be acted upon or to otherwise induce Plaintiff to elect not to personally serve them with all required documents in the manner required for service of summons, and (2) even if the request that Plaintiff’s counsel not personally serve Defendants could show that they intended Plaintiff to rely on that statement, Defendants’ counsel’s statement (i) concerned only the personal service of the Amendment to Complaint, and not the summons and operative complaint, and (ii) took place in 2022, following the expiration of the three-year deadline, and therefore could not have induced Plaintiff to not personally serve Defendants within that period of time.

The court therefore finds that Plaintiff has not served Defendants, in their representative capacities as trustees, within three years after this action was commenced and therefore grants Defendants’ motion.  (Code Civ. Proc., §§ 583.210, subd. (a), 583.250, subd. (a).)

ORDER

The court grants specially appearing defendants Andrew M. Smith and Victoria L. Smith, as trustees of the Andrew M. Smith and Victoria L. Smith Revocable Trust dated March 7, 2007’s motion to dismiss.

The court orders that the First Amended Complaint filed by Paul David Relf is dismissed as to defendants Andrew M. Smith and Victoria L. Smith, in their representative capacities as trustees of the Andrew M. Smith and Victoria L. Smith Revocable Trust dated March 7, 2007.

The court orders specially appearing defendants Andrew M. Smith and Victoria L. Smith, as trustees of the Andrew M. Smith and Victoria L. Smith Revocable Trust dated March 7, 2007, to give notice of this ruling.

IT IS SO ORDERED.

DATED:  May 10, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court