This case was last updated from Los Angeles County Superior Courts on 05/26/2019 at 15:16:57 (UTC).

ALINA HALL DERBY VS ESH HOSPITALITY HOLDINGS LLC

Case Summary

On 08/26/2016 ALINA HALL DERBY filed a Personal Injury - Other Personal Injury lawsuit against ESH HOSPITALITY HOLDINGS LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1836

  • Filing Date:

    08/26/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

STEPHEN I. GOORVITCH

 

Party Details

Plaintiff and Petitioner

DERBY ALINA HALL

Defendants and Respondents

DOES 1 TO 10

ESH HOSPITALITY HOLDINGS LLC

ESA P PORTFOLIO L.L.C. A DELAWARE

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

JACQUET JEFFREY ESQ.

JACQUET JEFFREY MICHAEL ESQ.

Defendant Attorney

EILER JAMES OLNEY ESQ.

 

Court Documents

COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

8/26/2016: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

AMENDMENT TO COMPLAINT

10/31/2016: AMENDMENT TO COMPLAINT

Unknown

6/12/2017: Unknown

ANSWER TO COMPLAINT OF PLAINTIFF ALINA HALL DERBY

6/12/2017: ANSWER TO COMPLAINT OF PLAINTIFF ALINA HALL DERBY

NOTICE OF MOTION AND MOTION TO COMPEL. RESPONSE TO JUDICIAL FORM INTERROGATORY, SET TWO, MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION OF PAUL W. BURKE; AND REQUEST FOR MONETARY, ISSUE, EVIDENTIAR

6/22/2018: NOTICE OF MOTION AND MOTION TO COMPEL. RESPONSE TO JUDICIAL FORM INTERROGATORY, SET TWO, MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION OF PAUL W. BURKE; AND REQUEST FOR MONETARY, ISSUE, EVIDENTIAR

EX PARTE APPLICATION OF DEFENDANT TO CONTINUE TRIAL FINAL STATUS CONFERENCE AND ALL RELATED CUT OFF DATES;AND ETC.

7/23/2018: EX PARTE APPLICATION OF DEFENDANT TO CONTINUE TRIAL FINAL STATUS CONFERENCE AND ALL RELATED CUT OFF DATES;AND ETC.

ORDER RE:DEFENDANT MOTIONS TO COMPEL RESPONSES TO DISCOVERY

7/26/2018: ORDER RE:DEFENDANT MOTIONS TO COMPEL RESPONSES TO DISCOVERY

Minute Order

7/26/2018: Minute Order

NOTICE OF RULING ON DEFENDANTS (1) MOTION TO DEEM ADMITTED REQUESTS FOR ADMISSION, SET ONE AND (2) MOTION TO COMPEL RESPONSES TO JUDICIAL FORM INTERROGATORIES, SET TWO

7/31/2018: NOTICE OF RULING ON DEFENDANTS (1) MOTION TO DEEM ADMITTED REQUESTS FOR ADMISSION, SET ONE AND (2) MOTION TO COMPEL RESPONSES TO JUDICIAL FORM INTERROGATORIES, SET TWO

Response

4/12/2019: Response

Motion to Be Relieved as Counsel

4/24/2019: Motion to Be Relieved as Counsel

Opposition

4/24/2019: Opposition

Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

4/24/2019: Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

Unknown

4/30/2019: Unknown

Notice

4/30/2019: Notice

Minute Order

4/30/2019: Minute Order

Unknown

5/8/2019: Unknown

Supplemental Declaration

5/13/2019: Supplemental Declaration

24 More Documents Available

 

Docket Entries

  • 05/24/2019
  • at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Motion to be Relieved as Counsel - Not Held - Taken Off Calendar by Party

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  • 05/13/2019
  • Supplemental Declaration (Declaration of Jeffrey Jacquet: Supplemental Proof of Service of Motion to be Relieved as Counsel); Filed by Jeffrey Michael Jacquet, Esq. (Attorney)

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  • 05/08/2019
  • at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Motion to Dismiss - Not Held - Continued - Court's Motion

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  • 05/08/2019
  • Minute Order ( (Hearing on Motion to Dismiss)); Filed by Clerk

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  • 05/08/2019
  • Certificate of Mailing for (Minute Order (Hearing on Motion to Dismiss) of 05/08/2019); Filed by Clerk

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  • 05/03/2019
  • at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Motion to Dismiss - Not Held - Continued - Court's Motion

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  • 04/30/2019
  • at 10:29 AM in Department 5, Stephen I. Goorvitch, Presiding; Court Order - Not Held - Rescheduled by Court

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  • 04/30/2019
  • Notice ( OF CONTINUANCE OF DEFENDATN ESA P PORTFOLIO, LLC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT FOR FAILURE TO PROSECUTE); Filed by James Olney Eiler, Esq. (Attorney)

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  • 04/30/2019
  • Certificate of Mailing for (Minute Order (Court Order: Hearing on Motion to Dismiss) of 04/30/2019); Filed by Clerk

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  • 04/30/2019
  • Minute Order ( (Court Order: Hearing on Motion to Dismiss)); Filed by Clerk

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51 More Docket Entries
  • 06/12/2017
  • Receipt; Filed by ESA P Portfolio L.L.C., a Delaware (Defendant)

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  • 05/16/2017
  • PROOF OF SERVICE SUMMONS

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  • 05/16/2017
  • Proof-Service/Summons; Filed by Alina Hall Derby (Plaintiff)

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  • 10/31/2016
  • AMENDMENT TO COMPLAINT

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  • 10/31/2016
  • Amendment to Complaint; Filed by Alina Hall Derby (Plaintiff)

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  • 08/31/2016
  • ORDER ON COURT FEE WAIVER

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  • 08/31/2016
  • Order on Court Fee Waiver (Superior Court); Filed by Clerk

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  • 08/26/2016
  • Complaint; Filed by Alina Hall Derby (Plaintiff)

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  • 08/26/2016
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 08/26/2016
  • Request to Waive Court Fees; Filed by Alina Hall Derby (Plaintiff)

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Tentative Rulings

Case Number: BC631836    Hearing Date: November 18, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

Alina Hall Derby,

Plaintiff,

v.

ESH HOSPITALITY HOLDINGS, LLC,

Defendant.

Case No.: BC631836

Hearing Date: November 18, 2019

[TENTATIVE] order RE:

Specially Appearing defendant’s motion to quash service of process and Dismiss Action of the PLAINTIFF

BACKGROUND

Plaintiff Alina Hall Derby (“Plaintiff”) filed the complaint in this action on August 26, 2016. On September 24, 2019, Plaintiff substituted ESA Management, LLC (“Defendant”) for Doe 2. Defendant moves to quash service of process and dismiss the action on the grounds that Plaintiff did not timely serve Defendant. Plaintiff opposes the motion. The motion is granted.

LEGAL STANDARD

Per Code of Civil Procedure section 583.210, subdivision (a), “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.” (Code Civ. Proc., § 583.220, subd. (a).) The parties may extend this time period by written stipulation between the parties or by oral agreement in open court. (Code Civ. Proc., § 583.230.) In computing the three-year period, the court excludes any time periods during which: (a) the defendant was not amenable to the process of the court; (b) prosecution of the action was stayed and the stay affected service; (c) the validity of service was the subject of litigation; or (d) service on defendant was impossible, impractical or futile due to causes beyond the plaintiff’s control. (Code Civ. Proc., § 583.240.)

In the case of Doe defendants, the time for service begins running upon filing of the original complaint rather than the Doe amendment. (Higgins v. Superior Court (2017) 15 Cal.App.5th 973, 982.) “The relation-back doctrine applicable to a fictitiously named defendant and the requirement that a plaintiff serve the summons and complaint within three years are independent concepts. Thus, 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.” (Ibid.)

To challenge a complaint served after the three-year date, a party may use either a motion to quash service of summons or a motion to dismiss the action. “The requirement of section 583.210, that ‘summons and complaint shall be served upon a defendant within three years after the action is commenced ...,’ necessarily raises the issue of the validity of the service.” (Mannesmann DeMag, Ltd. v. Superior Court (1985) 172 Cal.App.3d 1118, 1125.) “Accordingly, while a motion to quash is the procedure usually employed to challenge the validity of service, the same issue is raised by a motion to dismiss under section 583.210.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1433.) “When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Id. at 1439-40.)

DISCUSSION

Plaintiff named Defendant three years and 29 days after Plaintiff filed the complaint in this action. Plaintiff served Defendant three years and 30 days after filing the complaint. Thus, Defendant has demonstrated that Plaintiff served Defendant more than three years after filing the complaint in violation of Code of Civil Procedure section 583.210. Defendant has shifted the burden to Plaintiff to demonstrate that her service of Defendant was valid.

Plaintiff argues that service of summons on Defendant was “impossible, impracticable, or futile due to causes beyond the plaintiff’s control.” (Code Civ. Proc., § 583.240, subd. (d).) Plaintiff relies on the declaration of her counsel, Jeffrey Jacquet (“Counsel”).  In his declaration, Counsel states that, from the end of March 2018 to the beginning of May 2018, he had influenza, laryngitis, and strep throat.  (Declaration of Jeffrey Jacquet, ¶ 5.) Counsel states that, in April 2018, his work computer was stolen, and he had to recreate records and reorganize.  (Declaration of Jeffrey Jacquet, ¶ 6.) Then, Counsel states that, in June 2018, he injured his back, which ultimately led to his being placed on disability leave in late 2018.  (Declaration of Jeffrey Jacquet, ¶ 7.) Counsel’s declaration is insufficient to explain why Plaintiff could not timely serve Defendant. Plaintiff “has the burden of showing diligence as a prerequisite to obtaining relief under Code of Civil Procedure section 583.240, subdivision (d).” (Torrey Hills Community Coalition v. City of San Diego (2010) 186 Cal.App.4th 429, 437.)

Counsel’s declaration is insufficient. The complaint was filed on August 26, 2016, meaning that Plaintiff had until August 26, 2019, to serve Defendant. By Counsel’s own account, he was able to work for approximately 18 months before his illness, and for many months before the deadline of August 26, 2019. The record reflects that Counsel was not diligent. Therefore, the motion is granted.

CONCLUSION AND ORDER

Defendant’s the motion to quash and dismiss this action is granted. Service of the summons and complaint on Defendant is quashed, and the action is dismissed with prejudice as to Defendant. Defendant shall provide notice and file proof of such with the Court.

DATED: November 18, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court