Judge: Theresa M. Traber, Case: 20STCV35979, Date: 2023-08-21 Tentative Ruling

Case Number: 20STCV35979    Hearing Date: April 10, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     April 10, 2024                        TRIAL DATE: NOT SET

CASE:                         Paolo Ibarra v. Board of Trustees of California State University,

CASE NO.:                 20STCV35979           

MOTION TO DISMISS ACTION AGAINST INDIVIDUAL DEFENDANT GUSTAVO VALENCIA

MOVING PARTY:               Defendant Board of Trustees of the California State University

RESPONDING PARTY(S): No response on eCourt as of 4/5/24

CASE HISTORY:

·         09/21/20: Complaint filed.

·         04/01/22: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an employment discrimination action. Plaintiff alleges that he was subjected to extensive harassment by Defendant Gustavo Valencia while they were both employees at California State University Northridge.

Defendant Board of Trustees of the California State University moves to dismiss the action against individual Defendant Gustavo Valencia for failure to serve within the three-year period required by statute.

TENTATIVE RULING:

            Defendant Board of Trustees of the California State University moves to dismiss the action against individual Defendant Gustavo Valencia for failure to serve within the three-year period required by statute.

            Code of Civil Procedure section 583.210, subdivision (a) provides that “[t]he summons and complaint shall be served on a defendant within three years after the action is commenced against the defendant.” (Code Civ. Proc. § 583.210(a).) An action is “commenced” within the meaning of the statute “at the time the complaint is filed.” (Id.) Where service is not made within the time prescribed, “[t]he 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.” (Code Civ. Proc. § 583.250(a)(2).) The requirements of these statutes “are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” (Code Civ. Proc. § 583.250(b).)  

            This action was commenced with the filing of the original complaint naming the Board of Trustees and Gustavo Valencia as Defendants on September 21, 2020. (See Complaint.) Plaintiff filed a First Amended Complaint on April 1, 2022, naming the same parties. (See FAC.) To date, the only proof of service in this action was filed on November 9, 2022, stating that the Summons and First Amended Complaint was personally served only on the Board of Trustees on that same date. (See Proof of Personal Service.) No proof of service has ever been filed as to Defendant Valencia, and Plaintiff has not responded to this motion showing that Defendant Valencia was ever served. Because the three-year cutoff passed on September 21, 2023, the Board of Trustees is entitled to seek dismissal of this action as to Defendant Valencia as the other named Defendant in this case.

            Accordingly, Defendant’s Motion to Dismiss as to Defendant Gustavo Valencia is GRANTED.

            Dismissal is entered this date as to Defendant Gustavo Valencia.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  April 10, 2024                                    ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@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.