Judge: William A. Crowfoot, Case: BC676286, Date: 2022-08-30 Tentative Ruling

Case Number: BC676286    Hearing Date: August 30, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

 

INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB,

                   Plaintiff(s),

          vs.

 

JORGE CAMPOS, et al.,

 

                   Defendant(s),

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      CASE NO.: BC676286

 

[TENTATIVE] ORDER RE: MOTION TO DISMISS

 

Dept. 27

1:30 p.m.

August 30, 2022

 

I.       INTRODUCTION

On September 18, 2017, Plaintiff Interinsurance Exchange of the Auto Club filed this subrogation action against Defendant Xavier Franco (“Franco”) and Jorge Campos (“Campos”) arising from payments made to its insured related to an October 15, 2014, automobile accident.

A proof of service of summons filed on October 16, 2017, reflects that Campos was served by substituted service on September 30, 2017 by leaving a copy of the summons and complaint with Noe Franco, a relative and co-resident at 10601 Lev Avenue, Mission Hills, CA 91345.

On November 27, 2017, default was entered against Campos and Franco. On July 15, 2019, judgment was entered for Plaintiff against Campos and Franco.

On July 23, 2021, the Court set aside the default entered against Campos.

On June 15, 2022, Plaintiff filed a proof of substitute service on Campos.

On July 25, 2022, Defendant Campos filed the instant motion to dismiss.

II.      LEGAL STANDARDS

CCP § 583.210 provides that a summons and complaint must be served upon a defendant within three years of commencement of the action. Section 583.210 is subject to tolling as described in CCP § 583.240, which permits tolling under the four circumstances of unavailability, during a stay, litigation of the validity of service, and impossibility of service.

III.     DISCUSSION

          Defendant Campos requests that the Court dismiss this action against him for failure of Plaintiff to serve him within three years. This action commenced on September 18, 2017, and Campos was served on June 13, 2022, almost four years and nine months after the action was filed.

          In opposition, Plaintiff argues that the period to serve him was tolled from the time judgment was entered against Campos on July 15, 2019, through July 23, 2021, when the default judgment was set aside. Plaintiff cites to CCP § 583.240. Plaintiff argues that the default judgment was tantamount to a stay. Plaintiff provides no legal authority to support this argument, and absent a good faith basis for the modification or extension of an existing law, litigants are generally prohibited from asserting a position in litigation without authority. (See, e.g., In re Estate of Randall (1924) 194 Cal. 725, 728-29 [“Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned.”)(internal quotations omitted]; California Rules of Professional Conduct, Rule 3.1.) Plaintiff also argues that it was unaware of a dispute regarding service until defendant filed his motion to set aside the judgment in 2021. The Court finds that there is nothing in the record to show that “[t]he validity of service was the subject of litigation by the parties” for the period stretching between the default judgment and the filing of the motion to vacate/set it aside. Thus, the time period between those dates cannot reasonably be considered a period during which the service period was tolled on the basis of the exception under CCP § 583.240(c). Accordingly, the Court finds that Plaintiff has not provided a basis for the exceptions under CCP § 583.240 to apply. 

          Accordingly, the motion is GRANTED.

IV.     CONCLUSION

The motion 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.