On 12/29/2015 SUSAN HERNANDEZ filed a Personal Injury - Other Personal Injury lawsuit against THE VISTAS OF WEST HILLS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Stanley Mosk Courthouse
Los Angeles, California
VISTAS OF WEST HILLS THE
DOES 1 TO 25
ESSEX PROPERTY TRUST INC.
LAW OFFICES OF ARTHUR H. BARENS
12/29/2015: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
6/29/2017: Minute Order
at 1:30 PM in Department 91; Hearing on Motion to Set Aside/Vacate Dismissal (CCP 473) - Held - Motion GrantedRead MoreRead Less
PLAINTIFF'S MOTION TO VACATE AND SET ASIDE DISMISSALRead MoreRead Less
Minute OrderRead MoreRead Less
Order; Filed by CourtRead MoreRead Less
Notice of Motion; Filed by Susan Hernandez (Plaintiff)Read MoreRead Less
NOTICE OF MOTION AND MOTION FOR RELIEF TO VACATE AND SET ASIDE DISMISSAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; ETCRead MoreRead Less
at 08:30 AM in Department 91; Jury Trial (Jury Trial; Order of Dismissal) -Read MoreRead Less
Minute OrderRead MoreRead Less
at 10:00 AM in Department 91; Final Status Conference (Final Status Conference; Off Calendar) -Read MoreRead Less
Minute OrderRead MoreRead Less
COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by Susan Hernandez (Plaintiff)Read MoreRead Less
Case Number: BC605680 Hearing Date: November 01, 2019 Dept: 2
Hernandez v. The Vistas of West Hills, et al.
The Motion by Defendant Essex Property Trust, Inc. for Mandatory Dismissal Pursuant to Sections 583.210 and 583.250 of the Code of Civil Procedure, filed on 9/27/2019 is GRANTED. The action is dismissed as to Defendant Essex Property Trust, Inc.
Plaintiff Susan Hernandez filed this action on December 29, 2015. Defendant Essex Property Trust, Inc. (“Essex”) was served with the Summons and Complaint on June 13, 2019. Essex has moved to dismiss the action against because the summons and complaint were served more than three years after filing.
Code of Civil Procedure section 583.210(a) provides that the summons and complaint “shall be served” upon a defendant within three years after the complaint is filed. If service is not made within that time, the Court must dismiss the action against that Defendant upon motion of the Defendant (or the Court’s own motion). CCP § 583.250(a). “The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” CCP § 583.250(b).
There is no dispute that the Complaint was filed on Essex more than three years after filing. Plaintiff argues that the three-year period was tolled because the Complaint had been dismissed by the Court and Plaintiff had not moved to set aside the dismissal for approximately eight months. The case had been set for a final status conference and trial on June 13 and June 29, 2017 respectively. Plaintiff failed to appear at either, and the case was dismissed for failure to prosecute. On February 2, 2018, the Court granted the Plaintiff’s motion to set aside the dismissal under section 473. Plaintiff argues that the time was tolled during the 8-month period after the case was dismissed and before the dismissal was set aside.
In so arguing, Plaintiff relies on section 583.240, which sets forth the limited grounds for tolling. Subsection (d) provides that time is excluded in the calculating the three-year period if service was “impossible, impracticable, or futile due to causes beyond the plaintiff’s control.” The “impossibility, impracticability or futility” excuses are strictly construed. [See Bishop v. Silva (1991) 234 Cal. App. 3d 1317, 1321-1324; Torrey Hills Comm. Coalition v. City of San Diego (2010) 186 Cal. App. 4th 429, 436]
Plaintiff contends that it would have been “impossible, impracticable or futile” to serve the Complaint during that period and thus Plaintiff contends the exception applies. Plaintiff’s argument is not well-taken because the alleged impossibility, impracticability or futility were not due to causes beyond Plaintiff’s control. The action was dismissed because Plaintiff failed to appear at trial. It remained dismissed because Plaintiff failed to move to set aside the dismissal for eight months. The time during which the dismissal was in effect was totally within Plaintiff’s control.
The case on which Plaintiff relies, Graf v. Gaslight (1990) 274 Cal App. 3d 291 is directly contrary to Plaintiff’s position. In that case, the action had been filed on January 17, 1986. On July 13, 1988, the Court had dismissed the action. On January 9, 1989, Plaintiff moved to have the dismissal set aside. Sixteen days later, on January 25, 1989, the Court granted the motion and set aside the dismissal. Defendant was served on February 28, 1989, more than three years after the Complaint was filed.
Precisely as Plaintiff argues here, the plaintiff in Graf argued that the three-year period had been tolled from the date the Court had dismissed the action (July 13, 1988) to the date the dismissal was set aside (January 25, 1989). The Court rejected that argument on the grounds that Plaintiff could have moved to set aside the dismissal at an earlier time. The Court rejected the argument that the failure of counsel to learn of the dismissal constituted a valid excuse. The only tolling that the Court allowed was the 16-day period from when the Plaintiff moved to set aside the dismissal until the date on which the Court granted the motion. Graf mandates rejection of Plaintiff’s argument.
Plaintiff next argues that the Court may not dismiss the Complaint because Essex has filed an Answer. But the Answer was filed more than three years after the Complaint was filed. “A general appearance after the three-year period had run [does] not operate to deprive a defendant of his right to a dismissal.” Busching v. Superior Court (1974) 12 Cal. 3d 44, 52-53.
Accordingly, the Court GRANTS the motion to dismiss the Complaint to the extent it asserts claims against Defendant Essex Property Trust.
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