Judge Thomas D. Long, Case Number: 19STCV27319, Date: 2024-05-16 Tentative Ruling

On April 18, 2023, the Court granted Defendant Genrik Nazaryan’s motion to set aside default and default judgment. Defendant’s answer was filed the same day. No further action is reflected on this case’s docket.

On March 5, 2024, Plaintiff Adel Tanious filed a motion to set the case for trial for a date before August 1, 2024.

According to Plaintiff, because he filed this action on August 1, 2019, trial must be set before August 1, 2024 to avoid dismissal. (Motion at p. 4; see Code Civ. Proc., § 583.310.) Defendant argues that “Plaintiff has done nothing towards bringing this matter to trial or conclusion,” and the case should already be dismissed for failure to serve him within three years. (Opposition at pp. 2-7.)

“A plaintiff must serve ‘a defendant within three years after the action is commenced against the defendant.’ (§ 583.210, subd. (a).) ‘[A]n action is commenced at the time the complaint is filed.’ (Ibid.) Dismissal is mandatory where a plaintiff fails to serve a defendant within the statutory time limits. (§ 583.250, subd. (b).)” (Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1061.) “Service requirements ‘are mandatory and are not subject to extension, excuse, or exception except as expressly provide by statute.’ (§ 583.250, subd. (b).) The Legislature has articulated four conditions that toll the time for service. (§ 583.240, subd. (a).) The conditions ‘must be construed strictly against the plaintiff.’ [Citation.]” (Id. at pp. 1061-1062.) The exceptions include “The defendant was not amenable to the process of the court,” and “Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff’s control.” (Code of Civ. Proc., § 583.240, subd. (a), (d).)

Plaintiff filed this action on August 1, 2019, and the proof of service reflects substituted service on September 19, 2019. Plaintiff thereafter obtained entry of default and default judgment. Although the Court later vacated that entry of default and default judgment due to improper service, at the time, Plaintiff represented that Defendant had been timely served. Based on the status of this case as of the January 23, 2020 entry of default, service of process on Defendant was no longer possible because Defendant had purportedly already been served. Defendant’s answer was filed on April 18, 2023 when the default was vacated. Accordingly, because Defendant has appeared in this action and submitted to jurisdiction, Plaintiff need not re-serve him.

Moreover, even if this case were subject to dismissal due to failure to timely serve Defendant, the Court would not act on such a request when it is made only in opposition to a motion.

B. The Time to Bring This Case to Trial is Extended Until At Least February 1, 2025.

An action must be brought to trial within five years. (Code Civ. Proc., § 583.310.) However, after this case was filed, the Judicial Council of California adopted Emergency Rule 10(a), which provides a six-month extension to bring an action to trial. (See Ables v. A. Ghazale Brothers, Inc. (2022) 74 Cal.App.5th 823, 827-828.) With an August 1, 2019 filing date, the actual deadline to bring this action to trial is now February 1, 2025.

To guarantee a timely trial in case of unexpected continuances, the Court will set a trial date in or before November 2024.

Plaintiff’s counsel “has now undertaken additional research” and contends that the five-year period is tolled because (1) the August 2, 2021 default judgment made the case “impossible, impractical or futile” to bring to trial (Code Civ. Proc., § 583.340, subd. (c)); and (2) the case “was already brought to trial in the non-jury prove up when the court took testimony from the plaintiff.” (See Reply.)

Defendant has not had an opportunity to address this tolling argument. The Court therefore orders supplemental briefing about any tolling of the five-year rule as a result of the default judgment.

Additionally, the time to bring an action to trial may be extended by the parties’ written stipulation or oral agreement made in open court if that agreement is entered in the minutes of the court or a transcript is made. (Code Civ. Proc., § 583.330.) The parties are directed to meet and confer about whether they can agree on a period of time.

Final Status Conference is scheduled for [in or before November 2024] at 9:00 a.m.

No later than June 14, 2024, each party shall file and serve a supplemental brief regarding tolling. Alternatively, no later than June 14, 2024, the parties may file a stipulation to extend the deadline for trial.

An Order to Show Cause Re: Tolling or Extension of Five-Year Rule is scheduled for June 28, 2024 at 8:30 a.m.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court