Judge: Virginia Keeny, Case: 19STCV27617, Date: 2025-06-02 Tentative Ruling

Case Number: 19STCV27617    Hearing Date: June 2, 2025    Dept: 45

MYLINH PHAM VS AIRBNB, INC., ET AL.

DEFENDANT’S MOTION TO DISMISS COMPLAINT

Date of Hearing:        June 2, 2025                                      Trial Date:       None set. 

Department:              45                                                        Case No.:        19STCV27617

Moving Party:            Defendant Essex Portfolio, L.P.

Responding Party:     No opposition  

BACKGROUND

Plaintiff Mylinh Pham filed this action on August 5, 2019 against defendants Airbnb, Inc., Airbnb Payments, Inc., Casey Hill, Alex Doe, alleging causes of action for (1) Battery; (2) Negligence; (3) Intentional Infliction of Emotional Distress; (4) Fraudulent Concealment; (5) Private Nuisance; and (6) Public Nuisance. The Complaint alleges that Plaintiff discovered numerous bite marks during her trip on August 3, 2017 through August 6, 2017 when she checked in at the Airbnb in her room within apartment #2005. (Compl., ¶¶ 15-16.) Plaintiff alleges that she sought medical care on August 8, 2017 and she was diagnosed with bedbug bites. (Id. at ¶ 18.) The Complaint alleges that Defendants deliberately chose not to inspect Plaintiff’s room for bedbugs, failed to eradicate bedbug infestation, and failed to notify Plaintiff of the bedbug infestation. (Id. at ¶¶ 21-24.)

Defendant Airbnb, Inc. was dismissed on July 21, 2021.

[TENTATIVE] RULING:

Motion to Dismiss is GRANTED.

DISCUSSION

Defendant Essex Portfolio, L.P. move this court for an order dismissing Essex from this action on the grounds Plaintiff failed to identify and serve any doe defendants within three years of the commencement of this action yet named Essex as Doe 1, more than three years later. Defendant Essex also moves to dismiss this action based on the five year statute of limitations.

“The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.” (CCP § 583.210(a).) If service is not made within this prescribed time, the action shall be dismissed by the Court or on motion for any party, after notice. (CCP § 583.250(a)(2).)  Code of Civil Procedure section 583.410 provides that an action can be dismissed under appropriate circumstances. Dismissal is permitted when an action has not been brought to trial within three years of its commencement. (CCP § 583.420(a)(2)(A).) Dismissal is even permitted two years after the action is commenced “for delay in prosecution if the action has not been brought to trial or conditionally settled within two years after the action was commenced against the defendant.” (CRC Rule, 3.1340(a).)  

Defendant Essex argues it is undisputed that Plaintiff filed her complaint on August 5, 2019 and therefore, the deadline to serve a complaint upon a Defendant was August 5, 2022. Plaintiff, however, only recently filed a doe amendment on February 27, 2025, which is untimely and improper. Defendant Essex further argues the mere fact that a Doe Defendant is named at a later date does not toll the three-year statute of limitations. (See Watson v. Superior Court (1972) 24 Cal.App.3d 53, 59, disapproved on other grounds.)

Although the motion is unopposed, Defendant Essex asserts Plaintiff may attempt to argue that there was a stay of the action due to AirBnb Payments, Inc.’s motion to compel arbitration. Defendant Essex argues this will not save the complaint from mandatory dismissal on the grounds the court granted the motion to compel arbitration and stayed the action on December 2, 2022 – after the 3-year deadline to serve the complaint. Defendant Essex also anticipates Plaintiff will argue the relation-back doctrine will apply. However, Defendant Essex argues it does not apply because 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. Superior Court (App. 4 Dist. 2017) 15 Cal.App.5th 973, 982.)

The court agrees. Defendant’s motion to dismiss must be granted because dismissal is mandatory under Code of Civil Procedure section 583.210. There is no dispute Plaintiff did not serve Defendant Essex within three years from the filing of the complaint. The fact that Essex is a Doe Defendant does not toll the three-year deadline. Plaintiff has not opposed the motion and therefore, has not presented any evidence to show excusable delay of service. Moreover, as noted by Defendant Essex, the action was stayed after the deadline to serve Essex expired and relation back doctrine is inapplicable here. 

Accordingly, the motion to dismiss is GRANTED.