Judge: Robert S. Draper, Case: BC722170, Date: 2022-07-25 Tentative Ruling

Case Number: BC722170    Hearing Date: July 25, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Defendant’s Motion to Dismiss is DENIED.

FACTUAL BACKGROUND   

This is an action for credit debt collection. The Complaint alleges as follows. Defendant Araksya Arutyunyan (“Defendant”) requested a credit card from the original credit issuer, non-party Citibank N.A. (Compl. ¶¶ 6-8.) Plaintiff defaulted on the credit card account by failing to make payments since November 12, 2015. (Compl. ¶ 12.) Plaintiff Unifund CCR LLC (“Plaintiff”) “purchased or was assigned” Defendant’s debt from the credit card. (Compl. ¶ 9.) The balance on the account at “charge-off” was $60,069.69, with credits of $781.08, for a total amount due of $59,288.671. (Compl. ¶¶ 12-14.)

PROCEDURAL HISTORY 

On September 18, 2018, Plaintiff filed the Complaint asserting three causes of action:

1.     Account Stated;

2.     Open Book Account; and

3.     Indebtedness.

On February 14, 2019, the Court entered default judgment against Defendant in the amount of $59,780.61, including costs.

On December 30, 2020, the Court issued a Writ of Execution for money judgment for a total amount of $68,745.51, including accrued interest and fees.

On June 17, 2021, the Court granted Defendant’s Motion to Set Aside/Vacate/Default/Default Judgment.

On July 1, 2021, Defendant filed a Motion to Quash Service of Process. That Motion was unopposed.

On August 31, 2021, the Court granted Defendant’s Motion to Quash.

On December 28, 2021, Defendant filed the instant Motion to Dismiss.

On April 12, 2022, Plaintiff filed an Opposition. 

DISCUSSION

I.                MOTION TO DISMISS

Defendant moves the Court to dismiss the action pursuant to Code of Civil Procedure sections 583.210 and 583.250(a). (Motion at p. 5.)

CCP section 583.210 provides that the summons and complaint must be served upon a defendant within three years after the complaint is filed. (See Code Civ. Proc., § 583.210.) A court must dismiss the action if service of the summons and complaint is not affected within the statutory three-year period. (See id., § 583.250.) In computing the time within which service must be made, the time the defendant was not amendable to the process of court must be excluded. (See id., § 583.240.)  

Defendant notes that Plaintiff’s summons and complaint were filed on September 18, 2018. (Barmakszian Decl., ¶ 2.) Although Plaintiff served its summons and complaint on October 4, 2018, service was delivered on “John Doe,” a resident of 2167 Bronson Ave., Los Angeles, CA 90068, where Plaintiff believed Defendant resided. (Barmakszian Decl., ¶ 3.) However, Defendant had not resided at that address for nearly a year. (Barmakszian Decl., ¶ 6.)

Defendant argues that, because Plaintiff failed to properly serve her with the complaint and summons for over three years, the Court is required to dismiss the action pursuant to CCP section 583.210. (Motion at p. 5.)

Defendant cites to Perez v. Smith ((1993) 19 Cal.App.4^th 1595) as support for her contention. (Motion at p. 6.) In Perez, defendant moved to dismiss the action pursuant to section 583.210 after plaintiff failed to serve the complaint or summons on her for over three years. Plaintiff filed service by publication over three years after filling the Complaint. Plaintiff argued that dismissal was improper pursuant to 583.240(a). (Perez, 19 Cal.App.4^th, 1597.)

CCP section 583.240(a) states that in computing the time within which service must be made, any time in which “the defendant was not amenable to the process of the court” is excused.

The Perez Court found that, because “Defendant was served by publication after the three-year period for service established by section 583.210 had expired . . . 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.” (Id. at 1599) (citations omitted.)

Plaintiff’s arguments are unavailing. In Perez, the Court explicitly noted that plaintiff only applied for service by publication after the three-year period expired. Here, Plaintiff attempted to serve Plaintiff at her last known address under a month after the Complaint was filed.

Additionally, though it was not raised in either the Motion or Opposition, the Court notes CCP §¿583.240(d) provides an exception where “[s]ervice, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control.” “The tolling provision for impossibility, impracticability or futility does not exist in a vacuum. ‘“What is impossible, impracticable, or futile is determined in light of all the circumstances of a particular case, including the conduct of the parties and the nature of the proceedings. The critical factor is whether the plaintiff exercised reasonable diligence in prosecuting its case. The statute must be liberally construed, consistent with the policy favoring trial on the merits.” (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1270) (citations omitted.)

Courts have recognized that “there are some circumstances in which it can be said almost invariably that the exception applies” for impracticability, such as where “a default judgment has been entered in favor of the plaintiff, effectively bringing the litigation to a standstill.” (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 438.) Courts have “recognized the impracticability of bringing a case to trial when the defendant is already in default.” (Dale, 207 Cal.App.3d at 498.) The period “during which a party is in default, ‘as well as the period during which a default judgment is in effect,’ is excluded from computation” of the dismissal period under the impracticability exception. (Id. at 498-499; see also Maguire v. Collier (1975) 49 Cal.App.3d 309, 313.)   

Here, default was entered on February 14, 2019. The period between that date and June 17, 2021, when the Court vacated default, is excluded from computation of the dismissal period pursuant to the impracticability exception.

Accordingly, Defendant’s Motion to Dismiss is DENIED.

Because the Motion to Dismiss is denied, Defendant’s Request for Sanctions is also DENIED.

DATED: July 25, 2022          

________________________________ 

Hon. Robert S. Draper 
            Judge of the Superior Court