Tentative Rulings

Case Number: BC516166    Hearing Date: December 02, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

BACKGROUND

Plaintiff Keramat Aghabala (“Plaintiff”) filed this action against Defendant Harrison Shaw (“Defendant”) based on injuries Plaintiff sustained from a dog bite on January 23, 2013. The complaint was filed on July 24, 2013, and Defendant was added as a defendant on July 13, 2016. Plaintiff served Defendant on September 29, 2019. Now, Defendant moves to dismiss this case for failure to serve the summons and complaint within three years. The Court had also issued an Order to Show Cause (“OSC”) Re: Dismissal for the same reason. Plaintiff opposes the motion. The Court grants the motion and dismisses this case with prejudice. The Court discharges the OSC as moot.

LEGAL STANDARD

The summons and complaint “shall” be served within three years “after the action is commenced against the defendant.” (Code Civ. Proc. § 583.210.) It is “mandatory” that the Court dismiss any case that does not comply with this requirement. (Code Civ. Proc. § 583.250.)

DISCUSSION

The complaint was filed on July 24, 2013. Because Plaintiff named Defendant via Doe amendment, the three-year period began on the date Plaintiff originally filed the complaint, which is July 24, 2013. (Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1061.) Therefore, the deadline was July 24, 2016.

Even if the three-year deadline ran from the date Defendant was added via Doe Amendment, Plaintiff still violated Rule 583.210. Defendant was added as a defendant on July 13, 2016. Defendant contested the validity of service by filing his motion to set aside the default on May 29, 2019, which the Court decided on July 22, 2019. The 54-day period of May 29, 2019 to July 22, 2019 is tolled. (Code Civ. Proc., § 583.240, subd. (c).) Therefore, Plaintiff’s deadline to serve Defendant would have been August 28, 2019. Plaintiff did not serve Defendant until September 29, 2019. Therefore, Plaintiff has violated the three-year service rule.

Plaintiff argues that Defendant never served the motion on him. Plaintiff attaches a proof of service to the motion. Regardless, Defendant opposes the motion on the merits, waiving any claim that the motion was procedurally defective. (See In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 826.)

Plaintiff argues that the Court should toll the period of July 5, 2018, to May 29, 2019, because Plaintiff and his counsel believed that Plaintiff had validly served Defendant. Plaintiff cites no authority in support of this argument. Regardless, tolling this time period would not benefit Plaintiff because he did not even attempt to serve Defendant until after the three-year period ran on July 24, 2016.

Plaintiff also argues that equitable estoppel bars Defendant from seeking dismissal. There is nothing in the record suggesting that Defendant was not amenable to service or that service was impossible, impracticable, or futile due to causes beyond Plaintiff’s control. (See Code Civ. Proc. § 583.240(a) & (c).) Indeed, Plaintiff’s counsel merely needed to locate Defendant’s home address and serve him. Plaintiff’s argument that he mistook Defendant’s brother’s address for Defendant’s address is not persuasive.

CONCLUSION AND ORDER

Defendant Harrison Shaw’s motion to dismiss is granted per Code of Civil Procedure, section 583.210. Plaintiff’s case against Defendant Harrison Shaw is dismissed as of this date. The Court discharges the OSC as moot. The Court’s clerk shall provide notice.

DATED: December 2, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court