Judge: Steven A. Ellis, Case: 19STCV28285, Date: 2024-05-30 Tentative Ruling

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Case Number: 19STCV28285    Hearing Date: May 30, 2024    Dept: 29

Motion to Dismiss Plaintiff’s Complaint for Delay in Prosecution filed by Specially Appearing Defendant Raymond-Southern California, Inc.

Tentative

The motion is granted.

Background

On August 14, 2019, Jasmine Dominguez (“Plaintiff”) filed a complaint against Burbank Mall Associates, LLC and Does 1 through 100 for negligence and premises liability arising out of an incident in which Plaintiff asserts that she was injured by falling bathroom sink metal.

On August 16, 2019, Plaintiff amended the complaint to name Burbank Town Center as Doe 1.

On December 7, 2020, Plaintiff filed the complaint to name CAPREF Burbank LLC (“CAPREF”) as Doe 2. CAPREF filed an answer on March 9, 2021.

On December 28, 2020, the Court, at the request of Plaintiff, dismissed without prejudice all causes of action in the complaint against Burbank Mall Associates, LLC.

On October 25, 2023, Plaintiff amended the complaint to name Jones Lang Lasalle Americas, Inc. (“JLL”) as Doe 3. JLL filed an answer on January 30, 2024.

On January 30, 2024, Plaintiff amended the complaint to name W.E. O’Neil Construction Company of California (“O’Neil”) as Doe 4.

On March 29, 2024, O’Neil filed an answer to the complaint. On the same day, O’Neil filed a cross-complaint against Raymond Southern California Inc. (“Raymond”) and Roes 1 through 50.

On April 2, 2024, Plaintiff amended the complaint to name Raymond as Doe 5.

On April 24, 2024, JLL and CAPREF filed a cross-complaint against O’Neill, Raymond, and Roes 1 through 50.

On May 2, 2024, Raymond, specially appearing, filed this motion to dismiss complaint for failure to serve within three years of filing. The motion is set for hearing on May 30. Plaintiff filed an opposition on May 16, and Raymond filed a reply on May 22.

The Court is aware that on May 6, 2024, O’Neil On May 6, Defendant W.E. filed a motion to dismiss for failure to serve within three years. That motion is to be heard on June 6, 2024.

Judicial Notice/ Objections to Evidence

Raymond requests that the Court take judicial notice of Plaintiff’s complaint, the amendment to complaint naming Raymond as a defendant, and proof of service on Raymond. The request, which is not opposed, is GRANTED.

Raymond also asserts two objections to the Declaration of Plaintiff’s counsel. The Court OVERRULES both objections.

Legal Standard

“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) 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.

(b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”

(Code Civ. Proc., § 583.250.)

“In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which any of the following conditions existed:

(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.)

Courts have clarified the relation between the requirement to serve a defendant within three years under Code of Civil Procedure section 583.210 and the “relation-back” doctrine for fictitiously named defendants: 

“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.” 

(Higgins v. Super. Ct. (2017) 15 Cal.App.5th 973, 982.)

“In short, a plaintiff has three years from the date of filing the complaint to identify and serve a Doe defendant.” (Inversiones Papaluchi S.A.S. v. Super. Ct. (2018) 20 Cal.App.5th 1055, 1061.)

Discussion

Plaintiff filed the complaint in August 2019. Plaintiff did not serve Raymond until more than four years and seven months later, in April 2024. This is well beyond the three-year time period set forth in Code of Civil Procedure section 583.210. 

Plaintiff does not argue that Raymond was not amenable to service, that the action was stayed, or that the validity of service was subject to litigation during this period of more than four years and seven months. (See Code Civ. Proc., § 583.240, subs. (a)-(c).)

Instead, Plaintiff argues that a different defendant, CAPREF, provided false or misleading discovery responses in April 2021 that did not identify Raymond as a potential defendant in this action. (Ghermezian Decl., ¶¶ 14-16 & Exhs. 13-14.) Plaintiff asserts that her counsel did not learn that Raymond was potentially responsible for the injuries in this matter until some time in early 2024. (Id., ¶¶ 7-10.) As a result, Plaintiff contends, service on Raymond was “impracticable” or “futile.” (Code Civ. Proc., § 583.240, subd. (d).) In the alternative, or in addition, Plaintiff contends that Raymond should be equitably estopped from seeking dismissal because of the alleged false or misleading discovery responses of CAPREF.

The Court has considered all of the evidence in the record and all of the argument submitted by both sides. This is not a situation in which service on Raymond was at any relevant time “impracticable” or “futile.” Rather, Plaintiff simply failed to discover the relevant facts regarding potential defendants until 2024. Such a failure to discover relevant facts or evidence “is not a cause beyond the plaintiff’s control for the purpose of” Code of Civil Procedure section 583.240, subdivision (d).

Nor is there any basis to apply estoppel against Raymond. Even assuming that Plaintiff is correct in asserting that CAPREF provided false or misleading discovery responses, there is no evidence that Raymond did anything wrong or, for that matter, anything at all – much less anything that would estop Raymond from asserting a statutory bar to prosecution of this case against it. (See Tresway Aero, Inc. v. Super. Ct. (1971) 5 Cal.3d 431, 439-440; Brookview Condominium Owners’ Ass’n v. Heltzer Enterprises-Brookview (1990) 218 Cal.App.3d 502, 511-512.)

Accordingly, the Court must dismiss the causes of action asserted against Raymond in Plaintiff’s complaint. (Code Civ. Proc., § 583.250, subd. (a)(2).) This is mandatory; the three-year period to serve is “not subject to extension, excuse, or exception, except as expressly provided by statute.” (Id., subd. (b).)

This dismissal does not apply to the causes of action asserted against Raymond in the cross-complaint filed by O’Neil or the cross-complaint filed by JLL and CAPREF.

The motion is granted.

Conclusion

The Court GRANTS Raymond’s motion to dismiss.

The Court DISMISSES all causes of action against Raymond asserted in Plaintiff’s complaint.

Plaintiff is ordered to give notice.