Judge: Yolanda Orozco, Case: 20STCV19168, Date: 2022-10-26 Tentative Ruling
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Case Number: 20STCV19168 Hearing Date: October 26, 2022 Dept: 31
MOTION TO EXTEND THE TIME TO SERVE PLAINTIFFS’
THIRD AMENDED COMPLAINT IS GRANTED
Background
On May 20, 2020, Plaintiffs Jorge Robles and Meshal Kashifalghita (“Kash”) filed the instant action against Defendant Maribel Hinojosa and Does 1 through 100.
On August 1, 2022, Plaintiff filed a Third Amended Complaint asserting causes of action for:
1) Defamation, Libel Per Se
2) Defamation: Slander
3) Violation of the Unfair Competition Law (Bus. and Prof. Code § 17200, et seq.)
4) Negligence
5) Breach of Fiduciary Duty
6) Breach of the Duty of Fair Representation
On August 30, 2022, Defendant Maribel Hinojosa filed a Cross-Complaint.
A Judgment of Dismissal was filed on July 28, 2022, and Defendant California Correctional Pease Officer Association (“CCPOA”) was dismissed from this action.
Plaintiffs brought a Motion seeking an extension of time to serve an amended complaint on October 4, 2022.
Defendant CCPOA filed opposing papers on October 13, 2022. On October 19, 2022, Plaintiffs filed a reply.
Legal Standard
“The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint.” (Cal. Rules Court, rule 3.110(d).)
The court may also extend the time allowed to respond to a complaint. (Cal. Rules Court, rule 3.110(e).) “An application for a court order extending the time to serve a pleading must be filed before the time for service has elapsed. The application must be accompanied by a declaration showing why service has not been completed, documenting the efforts that have been made to complete service, and specifying the date by which service is proposed to be completed.” (Cal. Rules Court, rule 3.110(e).)¿
If a party fails to serve and file pleadings as required under this rule and has not obtained an order extending time to serve its pleadings, the court may issue an order to show cause why sanctions shall not be imposed. (Cal. Rules Court, rule 3.110(f).)
Discussion
Plaintiff asserts that through additional discovery, Plaintiffs acquired additional facts to sustain a cause of action for Breach of the Duty of Fair Representation against CCPOA. Because the October 2022 trial date was looming, Plaintiff filed a Motion to Amend the Third Amended Complaint (TAC) on August 30, 2022 but had not yet served the TAC on Defendant CCPOA. (Sodaify Decl. ¶¶ 6-9.)
Plaintiffs sought ex parte relief to extend the time to serve the TAC but the relief was denied because the Court determined ex parte relief was not warranted and the proper method would be to bring a noticed motion. (Min. Or. 09/15/22.) Therefore, Plaintiffs believe their neglect is excusable.
Plaintiffs allege that because Defendant Hinojosa filed a Cross-Complaint, which added CCPOA as a Defendant, the TAC would become obsolete by the proposed Fourth Amended Complaint. Moreover, the trial date was moved to January 2023.
Plaintiffs filed their ex parte application to extend the time to serve their TAC on September 14, 2022, merely two weeks beyond the deadline to serve their TAC which expired on August 31, 2022.
Plaintiffs also take the position that because CCPOA had been dismissed it did not have to be served with Pleadings, despite the fact that CCPOA remained a named Defendant in the TAC. Plaintiffs assert that CCPOA officially appeared when it filed an Answer to the Cross-Complaint and therefore Plaintiffs need not have filed the Motion for Leave to Amend nor the Ex Parte Application on CCPOA.
Defense counsel for PAAC is also counsel for CCPOA. Defense counsel asserts that on August 1, 2022, the Plaintiffs tried to serve CCPOA with the TAC, but later Plaintiffs asserted it was not trying to serve CPPOA despite CCPOA being listed in the proof of service. (Ross Decl. Ex. F, p. 17.) Defense counsel asserts that on August 2, 2022, Plaintiffs’ counsel stated that CCPOA had yet to be served with a TAC and failed to respond to whether Plaintiffs intended to serve CCPOA with the TAC. (Id. Ex. G, H, I.)
“An application for a court order extending the time to serve a pleading must be filed before the time for service has elapsed. The application must be accompanied by a declaration showing why service has not been completed, documenting the efforts that have been made to complete service, and specifying the date by which service is proposed to be completed.” (Cal. Rules of Court, rule 3.110(e).)
Although the Plaintiffs assert excusable neglect in failing to serve the TAC, the application for relief needed to be made before the time for service elapsed. Moreover, Plaintiffs were required to document their efforts to complete the service and specify the date by which the service is proposed to be completed.
Since CCPOA had notice through counsel of the TAC, prejudice to CCPOA is nonexistent if the motion is granted. The Court GRANTS Plaintiff’s Motion. (Cal. Rules of Court, rule 3.110(f).)
Conclusion
Plaintiffs’ Motion to Extend the Deadline to Serve an Amended Complaint is GRANTED. Amended complaint must be served within 10 days.
Plaintiffs to give notice.