2014-00173055-CU-OE

Dorothy Takahashi vs. Emergency Medical Services Authority

Nature of Proceeding: Motion to Dismiss

Filed By: Deschler, Jerry J.

Defendant Emergency Medical Services Authority’s (“EMSA”) Motion for Mandatory Dismissal due to failure to serve the Complaint within three years of filing the complaint is granted.

The Complaint was filed on December 18, 2014. The First Amended Complaint was filed on April 3, 2015 and a Second Amended Complaint was filed on March 14, 2018. Defendant EMSA has never been served with the summons and complaint.

Defendant contends that the Court scheduled a case management conference for September 21, 2017 and ordered Plaintiff to appear and show cause why the case was not proceeding to trial. The Court continued the case management conference and hearing on order to show cause several times. EMSA did not appear. Counsel for defendant states Plaintiff’s counsel Michael Opper appeared in Department 47 and represented to the Court that all parties, including EMSA, had been served and had answered, and that the case was ready to proceed to trial. On June 7, 2018, the Court ordered that the order to show cause was discharged and, based on Mr. Opper’s representation that the case was at issue, the Court ordered the parties to the Trial Setting Process to select a trial date. However, defendant had never been served with the summons and complaint. Defendant never stipulated in writing to extend the time of service of the summons and complaint (Declaration of Jerry J. Deschler)

The Court notes that the above series of events is not reflected in CCMS. CCMS states that the case was dismissed because counsel for plaintiff did not appear at the OSC re dismissal hearing. However, the case was thereafter reinstated on the same date and the dismissal was vacated, with no explanation in the record as to the reason.

A motion to dismiss for delay in service of summons is not a general appearance. (Code Civ. Proc, § 583.220(b).) Therefore, because EMSA has not previously

appeared in this action, EMSA has not made a general appearance in this action by filing this motion to dismiss.

Code of Civil Procedure section 583.210, subdiv. (a), provides: 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. Dismissal for failure to serve the summons and complaint within that three year period is mandatory, subject only to the exceptions that are expressly provided by statute. (Code Civ. Proc, § 583.250.) The only exceptions to the service deadline referenced above are a “stipulation in writing” or “another act that constitutes a general appearance in the action.” (Code of Civil Procedure § 583.220.) Additionally, a plaintiff may be excused from the three year deadline if defendant was not amenable to service, prosecution of the action was stayed and the stay affected service, the validity of service was subject to litigation or service was for some reason “impossible, impracticable, or futile due to causes beyond the plaintiffs control.” However, failure to discover relevant facts or evidence is not a cause beyond the plaintiff’s control for purpose of this subdivision. (Code Civil Procedure § 583.240 (a)-(d).

Plaintiff filed a late opposition on August 13, 2018, 8 court days before the hearing. In the opposition, counsel for plaintiff states that due to plaintiff’s continued employment with EMSA the complaint was not served in the hope that the matter might amicably resolve without litigation. Counsel, Mr. Biegler, also states that he had discussion with Lynn Harlan of the AG’s office about a related matter, Tsakuda v EMSA [case no. 2014 -171839], in which action the defendant had been served with the summons and complaint. Mr. Biegler states he mistakenly thought Lynn Harlan stated in an email that she would be representing EMSA “in this matter.” (No copy of this email has been provided with the opposition.) Counsel later realized he made a mistake and that Ms Harlan had told him that she did not have authority to accept service of the summons and complaint. Mr. Biegler then states that he received an email from Ms Harlan on December 28, 2017 and a letter on January 9, 2018 informing him that ESMA had never been served. (Declaration of Biegler) While providing context for the failure to serve, none of the facts presented in opposition assist the plaintiff on this motion; Plaintiff has presented no evidence that service on Defendant was “impossible, impracticable, or futile,” other than Plaintiff’s admitted own failure to serve ESMA.

The motion to dismiss is granted. Plaintiff has presented no evidence of the specific exceptions to mandatory dismissal under the applicable code section. That section requires a showing that service was “impossible, impracticable, or futile due to causes beyond the plaintiffs control.” CCP § 583.240(d). The exclusion provided by section 583.240, subdivision (d) for service which is “impossible, impracticable, or futile due to causes beyond the plaintiff’s control” must be strictly construed against the plaintiff. Plaintiff’s continuing employment by the defendant is not a showing that service of summons and complaint on the defendant was “impossible, impracticable, or futile due to causes beyond the plaintiffs control.” CCP 473 relief is not a recognized exception to the mandatory dismissal statute. Moreover, and in any event, no showing of excusable neglect has been shown. Again, failure to discover relevant facts or evidence is not a cause beyond the plaintiff’s control, and would not constitute excusable neglect, even if § 473 could apply [which it does not; see, infra.]. See also § 583.240(d), 583.250.

In that regard, § 583.250 provides: “(a) If service is not made in an action within the

time prescribed in this article:

(1) The action shall not be further prosecuted and no further proceedings shall be held in the action.

(2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties.

(b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”

Although not cited, it bears noting that the mandatory language of section 473 clearly does not apply to the “mandatory dismissal” statute of CCP 583.250. (Bernasconi Commercial Real Estate v. St. Joseph’s Regional Healthcare System (1997) 57 Cal.App.4th 1078, 1081-82.) In Bernasconi, the court held that the “mandatory relief” provision of CCP 473 “does not mandate relief from [an order of mandatory] dismissal for failure to serve a complaint within three years [CCP § 583.250] where the plaintiff’s counsel files an affidavit avowing fault,” because “[j]ust as a literal reading of section 473 would abrogate the discretionary dismissal statutes by implication, so would it do to the mandatory dismissal provisions of section 583.250. The silence of the legislative history of the 1992 amendment to section 473 with respect to the discretionary dismissal statutes is equally profound with respect to section 583.250. And the policies underlying the discretionary dismissal statutes are even more compelling as to the mandatory dismissal provisions of section 583.250, since the sloth in prosecution which compels dismissal is graver than that which merely invites it.” (Bernasconi, 57 Cal.App.4th at 1081-82 (“the relevant provision of section 473 may be reconciled with the discretionary dismissal statutes only if limited to those dismissals which are the procedural equivalent of defaults –i.e., those which occur because the plaintiff’s attorney has failed to oppose a dismissal motion” and holding that mandatory relief under CCP 473 was unavailable in the context of a mandatory dismissal pursuant to CCP 583.250).)

The prevailing party shall prepare a formal order for the Court’s signature pursuant to C.R.C. 3.1312.