Judge: William A. Crowfoot, Case: 20STCV22632, Date: 2022-12-19 Tentative Ruling

Case Number: 20STCV22632    Hearing Date: December 19, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On June 16, 2020, plaintiffs Monica Hernandez and Joseph Garcia (collectively, “Plaintiffs”) filed this action against defendants EZ Mailing Services (“EZ Mailing”) and Miarah McKenzie (“McKenzie”) (erroneously sued as “Miarah McKinzie”) (collectively, “Defendants”). On May 13, 2021, Plaintiffs filed the operative First Amended Complaint (“FAC”).  This action arises from a motor vehicle collision that occurred on April 9, 2019.  Plaintiffs allege that at the time of the collision, McKenzie was working within the course and scope of her employment with EZ Mailing. 

Plaintiffs previously filed another action (Case No. 19STCV31423) arising from the same collision, but it was dismissed on April 20, 2020 for failure to prosecute. 

On October 25, 2022, the Court granted Defendants’ motion to quash service of summons, filed on October 3, 2022, after Plaintiff failed to timely oppose the motion. 

On November 4, 2022, Defendants filed this motion to dismiss the action for failure to prosecute and failure to serve the summons and complaint. 

The court may, in its discretion, dismiss an action for delay in prosecution where service is not made within two years after the action is commenced against the defendant (Code Civ. Proc., § 583.420, subd. (a)(1)), or where the action is not brought to trial within two years after the action is commenced against the defendant.  (Code Civ. Proc., § 583.420, subd. (a)(2)(B).)  “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.” (CCP § 583.240(a)-(d).)  In ruling on a motion to dismiss, the court may consider the court file, diligence in seeking effective service of process, the extent to which parties engaged in any settlement negotiations, diligence in pursuing discovery, nature and complexity of the case, pendency of other litigation based on common facts, nature of any extensions of time or other delay, condition of the court’s calendar, whether the interests of justice are best served by dismissal, and any other facts or circumstances relevant to fair determination.  (Cal. Rules of Court, Rule 3.1342(e).)

The period of time for service and return of summons is tolled for any time during which service, for any reason, was impossible, impracticable, or futile due to causes beyond the plaintiff’s control.  (Code Civ. Proc., § 583.240, subd. (d).)  “This excuse ‘should be strictly construed in light of the need to give a defendant adequate notice of the action so that the defendant can take necessary steps to preserve evidence.  [Citation.]”  (A. Groppe & Sons Glass Co., Inc. v. Fireman’s Fund Ins. Co. (1991) 232 Cal.App.3d 220, 224.)  “[T]he trial court has broad discretion in determining whether one of the statutory excuses has been proved by plaintiff.”  (Ibid. [citing Tresway Aero, Inc. v. Superior Court (1971)5 Cal.3d 431, 436.) 

Defendants move to dismiss this action on the grounds that they have not been served even though Plaintiff filed the Complaint two years ago.  Although Plaintiffs filed proof of services stating that Defendants were served on September 13, 2021, the Court quashed this service as improper on October 25, 2022, and no attempts to serve Defendants have been made since the Court’s ruling. 

In opposition, Plaintiffs argue that McKinzie has been served twice, once for this lawsuit and another time for the previously filed one.  This argument fails because there is no law allowing the Court to consider whether service of summons in a previous case gives it jurisdiction over Defendants in this one.  Also, in making this assertion, Plaintiffs wholly ignore the Court’s October 25, 2022 ruling, which quashed the purported service on September 13, 2021.  In fact, throughout their opposition brief, Plaintiffs largely relitigate the issue of whether the service performed on September 13, 2021 was valid, even insinuating that McKinzie must have been served with the summons and complaint because otherwise, her attorneys would not have been retained.  In response, defense counsel declares that he was retained after third-party administrator Gallagher Bassett Services, Inc. was contacted by Plaintiffs’ counsel after the accident, and the adjuster at Gallagher Basset asked defense counsel to investigate whether either defendant had been properly served.  (Reply Decl., ¶ 5d(iii).)   

The only other arguments advanced by Plaintiffs is that Defendants somehow lulled them into believing that they were properly served by participating in settlement negotiations.  However, Plaintiffs were informed on April 28, 2022 by defense counsel that they did not believe that service was valid, giving them sufficient time to complete service within the statutory period.  (Reply Fenton Decl., Ex. A.)  Though defense counsel asked McKinzie if she would allow them to accept service on her behalf, it does not appear that Plaintiffs’ counsel followed up on this issue.  In fact, even after Defendants filed a motion to quash, Plaintiffs did not timely file an opposition brief.  It also appears that Plaintiffs did not act after the Court ruled on the motion to quash, or in response to the filing of this motion.  Given this pattern of inaction, the Court is hard-pressed to find that Plaintiffs have acted with diligence in prosecuting their case. 

In light of the foregoing, Defendants’ motion to dismiss is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.