Judge: Stephen Morgan, Case: 19AVCV00188, Date: 2023-01-10 Tentative Ruling

                                                                           Department A14 Tentative Rulings 

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG. 

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Case Number: 19AVCV00188    Hearing Date: January 10, 2023    Dept: A14

Background

 

This is an action arising from injuries suffered by Cheyenne Jones (“Cheyenne”) and Alysa Jones (“Alyssa” or, collectively, “Plaintiffs”) caused by three assaults and/or batteries occurring on March 1, 2018, October 12, 2018, and October 29, 2018 while Cheyenne and Alysa Jones were attending school at Lancaster High School, located at 44701 32nd Street W, Lancaster, CA 93536. Defendant Antelope Valley Union High School District ("AVUHSD”) was, and is, a public entity that oversees multiple schools, including Lancaster High School.  

 

On March 6, 2019, Cheyenne Jones, Alysa Jones, and Theresa Hampton (collectively “Plaintiffs”) filed their Complaint.¿ The operative pleading is the Third Amended Complaint (“TAC”) filed on December 16, 2019 and containing¿causes of action for Statutory Negligence and Negligent Supervision.¿ 

 

On October 18, 2019, Plaintiffs amended the fictitious name of Doe 2 to Kristin Laughlin.

 

On February 5, 2020, Defendants AVUHSD, Antoinette Clark (“Clark”), Kristen Laughlin (“Laughlin”), and Ricardo De La Pena (“De La Pena” and collectively AVUHSD Defendants”) filed a Cross-Complaint against Maria Galaviz, Isaac Galaviz, Isabel Garcia, Shaneria Arnold, Karl Williams, and Marquita Matthews, Anya Jones, and Danielle Paris (parent or guardian of Anya Jones). The Cross-Complaint is dismissed as to Marquita Matthews and Karl Williams. Isaac Galaviz, Maria Galaviz, Shaneria Arnold, and Isabel Garcia are in default. Anya Jones and Danielle Paris have not responded.  

 

On January 22, 2021, Defendant AVUHSD substituted their attorney Richard Oppenheim, Jr. (“Oppenheim, Jr.”) with Louis R. Dumont (“Dumont”). 

 

On October 18, 2021, Plaintiffs amended the TAC by: (1) amending the ficticious name of Doe 3 to Kristen Tepper and (2) amending the fictitious name of Doe 4 to Jo Kim. 

 

On February 03, 2022, Plaintiffs amended the TAC by: (1) 1) withdrawing an amendment as to Doe 3 as Doe 3 was named in the TAC as Ricardo De La Pena, (2) amending the fictitious name of Doe 5 to Kristen Tepper, and (3) amending the fictitious name of Doe 6 to Lloyd Dunn (“Dunn”).

 

On September 06, 2022, Dunn filed his Motion to Quash Service of Summons and Complaint (“Motion to Quash”), granted on September 16, 2022.

 

On December 07, 2022, Dunn filed this instant Motion to Dismiss.

 

On December 28, 2022, Plaintiffs fled their Opposition. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . .before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) The hearing is set for January 10, 2023. As such, an Opposition was due by December 27, 2022. “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” (Cal. Rules of Court, Rule 3.1300(d).) The Court notes that its records show that Plaintiffs attempted to file their Opposition on December 27, 2022. However, it was rejected due to the fact that it did not conform to electronic filing requirements. The Court considers the late filed opposition.

 

On January 03, 2023, Dunn filed his Reply.

 

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Legal Standard

 

Standard for Dismissal for Failure to Serve in Three Years – Cal. Code Civ. Proc. § 583.210 provides that the summons and complaint must be served upon a defendant within three years after the complaint is filed. A court must dismiss the action if service of the summons and complaint is not effected within the statutory three-year period. (See Cal. Code Civ. Proc. § 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 Cal. Code Civ. Proc. § 583.240.)  

 

The plaintiff has the burden of establishing facts suspending the operation of the service of summons and return of service within three years of commencement of action. (Ostrus v. Price (1978) 82 Cal.App.3d 518, 521 [discussing three-year time limit for service in the context of Cal. Code Civ. Proc. § 581a (repealed in 1985 and replaced with Cal. Code Civ. Proc. § 583.210)].)

 

Discussion

 

Application – Dunn presents that the action is deemed to have been commenced against Dunn from the filing of the Complaint, even though he was added only later as a Doe and the burden is on Plaintiffs to show an exception. Dunn cites to Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1061 (“Inversiones”) and Higgins v. Superior Court (2017) 15 Cal.App.5th 973, 982 (“Higgins”) to support his argument. Further, Dunn presents that purported service period is per se ineffective.

 

 

Inversiones holds:

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. (See Higgins v. Superior Court (2017) 15 Cal.App.5th 973, 982 [224 Cal. Rptr. 3d 11]; Lesko v. Superior Court (1982) 127 Cal.App.3d 476, 481–482 [179 Cal. Rptr. 595].) In short, a plaintiff has three years from the date of filing the complaint to identify and serve a Doe defendant. (Higgins v. Superior Court, supra, at p. 982.)

 

(Inversiones, supra, 20 Cal.App.5th 1055 at 1061.)

 

Higgins holds:

 

Cabandong explains that she did not know of Higgins's identity or involvement until after discovery in the Adversary Proceeding and that once she learned of his involvement, she promptly took affirmative action in both the bankruptcy court (related to the automatic stay) and the superior court (related to the third amended complaint). However, Cabandong's explanation is irrelevant, since for purposes of computing the three years in which the plaintiff must serve the defendant, “[f]ailure to discover relevant facts or evidence is not a cause beyond the plaintiff's control. …” (§ 583.240, subd. (d)). (Republic Corp. v. Superior Court (1984) 160 Cal.App.3d 1253, 1256 [207 Cal. Rptr. 241] [under predecessor to § 583.240, subd. (d), plaintiff's failure to discover the true identity or facts showing the liability of an unserved Doe defendant insufficient excuse for delay in service of summons on real defendant].)

 

In a related argument, Cabandong is wrong in suggesting that, because the filing of the third amended complaint in which she identified Higgins as Doe 2 relates back to the filing of the original complaint, the service of the summons and third amended complaint also relates back to the filing of the original complaint. The relation-back doctrine applicable to a fictitiously named defendant and the requirement that a plaintiff serve the summons and complaint within three years are independent concepts. Thus, even where the filing of an amended complaint on a Doe defendant relates back to the filing of an original complaint, the plaintiff must nonetheless identify and serve a Doe defendant with a summons and complaint within three years of the commencement of the action. (Lopa v. Superior Court (1975) 46 Cal.App.3d 382, 387–390 [120 Cal. Rptr. 445] [under predecessor to § 583.210, subd. (a)]; see § 583.250, subd. (b) [requirements of § 583.210 et seq. “are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute”].)

 

(Higgins, supra, 15 Cal.App.5th 973, 982.)

 

Plaintiffs believe that the three-year statute of limitations applies only to the SAC, not the original Complaint and that the statute of limitations was tolled when Dunn brought his Motion to Quash on August 17, 2022. Plaintiffs argue that the doctrine of estoppel prevents Dunn from asserting the three-year deadline to serve because failed to appear for his deposition, noticed February 28, 2020; failed to appear after the Court granted Plaintiffs’ Motion to Compel Depositions on February 10, 2022; and that Dunn had notice of the lawsuit since he was served with a deposition notice in February 2020 and that Dunn was designated as AVUHSD’s Person Most Knowledgeable (“PMK”), satisfying the purpose of the statutory limits of Cal. Code Civ. Proc. § 583.210. (See Opposition 7:6-11 [citing case law to argue that (1) purpose of the statutory limits in Cal. Code Civ. Proc. § 583.210 is to give defendants timely notice of an action against them so that they can take eff01is to preserve any relevant evidence, and (2) statute is entitled to promote trial before memories become dimmed and protect defendants from being subjected to the annoyance of unmeritorious actions that remain undecided for an indefinite time period].) Plaintiffs further present that counsel for AVUHSD, Louis R. Dumont (“Dumont”), who is in the same firm as Dunn’s counsel presented that he would assist with service upon Dunn and did not mention the three-year statute of limitations.

 

Dunn argues that the statutory language provides a mandatory three-year limit for service and “failure to discover relevant facts or evidence is not a cause beyond the plaintiff’s control for the purpose of this subdivision.” (See Cal. Code Civ. Proc. § 583.240(d).) Dunn also argues that the tolling provision does not aid Plaintiff as the three years had already passed and Plaintiff’s claim for estoppel fails as Plaintiff’s contact with Dumont occurred after the three-year period. The Reply also reiterates that the three-year period commenced when Plaintiff filed the original Complaint, not the SAC.

 

Here, the Complaint on March 06, 2019. As with Higgins, Dunn was an unidentified Doe defendant and named only through an amended complaint (i.e., the TAC). Three years from March 06, 2019 is March 06, 2022. The three-year statutory limit has elapsed.

 

While Plaintiffs argue that the delay in finding out that Dunn had the responsibility for handling the January 2018 incident, the Court notes the following:

 

 

Thus, the delay in the discovery of knowledge that Dunn was responsible for handling the January 2018 incident was not only due to Dunn, but also due to Plaintiffs.

 

Regarding the argument of tolling due to the Motion to Quash, Cal. Code Civ. Proc. § 583.240 provides that “computing the time within which service must be made pursuant to this article, there shall be excluded the time during which the validity of service is the subject of litigation. (See Cal. Code Civ. Proc. § 583.240(c).) The amount of time in which the validity of service was in dispute was from September 01, 2022 to September 16, 2022.  This brief period of tolling does not affect the analysis in the motion as three years from March 06, 2019 is March 06, 2022. Dunn was served and disputed the summons past the three-year period.

 

The Court next turns to the argument regarding Dumont. The Court notes that Dunn’s counsel of record, John J. Stumreiter (“Stumreiter”), is within the same firm as Dumont and the Motion to Quash was brought by Dumont himself. While the Court believes that Dumont’s representations that he would aid in service of Dunn may have created a false impression to Plaintiff’s counsel, it does not impact the analysis of Plaintiffs’ argument. Specifically, Plaintiff cites: "A defendant should not be permitted to lull his adversary into a false sense of security and cause the bar of the statute of limitations to occur and then plead in defense the delay 25 occasioned by his own conduct." (Kleinecke v. Montecito Water Dist. (1983) 147 Cal.App.3d 26 240, 245.) Plaintiff presents that Dumont represented that he would assist in service of Dunn on September 01, 2022. (Decl. Joshua H. Haffner ¶ 2.) However, September 01, 2022 is past the three-year statutory period which ended on March 06, 2022. Dumont’s representations did not cause the statutory three-year period to lapse.

 

Case precedent is clear and this Court is bound by it. Accordingly, the Motion to dismiss is GRANTED.

 

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Conclusion

 

Defendant Lloyd Dunn’s Motion to Dismiss Against Lloyd Dunn is GRANTED.