2010-00076626-CU-PO

Kimberly Mortensen vs. First Distributors, Inc.

Nature of Proceeding: Motion to Dismiss

Filed By: Sharpe, Linda J.L.

Defendant First Distributors, Inc.’s motion to dismiss for failure to serve summons and
complaint is granted.

Specially appearing defendant moves to dismiss pursuant to CCP § 583.250(a) on the
basis that Plaintiff has not served the summons and complaint within the three years
prescribed in § 583.210(a). The complaint was filed on April 28, 2010. Thus, if no
exceptions apply, the three year deadline expired on April 28, 2013.

Plaintiff opposes the motion on the basis that she exhausted all avenues of service
and applied to the Court for an order of publication three times. She asserts that twice
she has been told that Court personnel lost the application and/or declarations
submitted with the application and that she needed to re-file and she has been unable
to determine the status of the third application filed on September 3, 2013.

Section 583.240 provides that in computing the time within which service must be
made, “there shall be excluded the time during which any of the following conditions
existed: (a) The defendant was not amendable to the process of the court…(c) The
validity of service was the subject of litigation by the parties. (d) Service, for any other
reason, was impossible, impracticable, or futile due to causes beyond the plaintiff’s
control. Failure to discover relevant facts or evidence is not a cause beyond the
plaintiff’s control for the purpose of this subdivision.” The “exceptions codified in [Code
of Civil Procedure] section 583.240, subdivision (d) must be construed strictly against
the plaintiff.” (Shipley v. Sugita (1996) 50 Cal.App.4th 320, 326.) “ ‘The excuse of
impossibility, impracticability, or futility should be strictly construed in light of the need
to give a defendant adequate notice of the action so that the defendant can take
necessary steps to preserve evidence.’ ” (Bishop v. Silva (1991) 234 Cal.App.3d 1317,
1322.) When the plaintiff’s problems are within its control, no relief is available. (Ibid.)
The “ ‘plaintiff must exercise diligence’ ” in serving the summons. (Ibid.)

Here, the Court finds that Plaintiff has failed to demonstrate that Defendant was not
amenable to service of process. Amenable to process does not, as Plaintiff argues,
refer to situations where as here the Defendant does not have a valid business
address or could not be served because it cannot be located or the agent for service of
process maintained that he was mistakenly listed as the agent. Rather, as stated by
the California Supreme Court, “amenable to process” as used in CCP § 583.210(a)
refers to “an examination of whether that party was subject to being served under
applicable constitutional and statutory provisions. Nothing in the several Court of
Appeal decisions construing the amendment of former section 581a persuades this
court that the phrase “amenable to process of the court” was intended to, or should,
refer instead to a defendant’s reasonable availability, as a practical matter for service
th
of process.” ( Watts v. Crawford (1995) 10 Cal.4 743, 757-758.) Therefore, “a finding

that defendant was not reasonably available for service of process, other than by
publication, was not the equivalent of a finding that defendant was not amenable to the
process of the court within the meaning of section 583.240(a).” (Id. at 761.) Thus, this
exception does not apply in the instant case as no argument or showing was made
that Defendant was not “amenable to process of the court.”

In addition, while the Court agrees that a certain amount of time could possibly be
excluded from calculating the three year time period in which Plaintiff had to serve the
summons and complaint, that does not save Plaintiff. Indeed, Plaintiff submitted an
application for publication on July 2, 2012 yet apparently heard nothing back from the
Court. (Heller Decl. ¶ 8.) At some unspecified time, counsel contacted the Court’s law
and motion department, and was apparently informed that the application could not be
located and it would be best to resubmit the application. She resubmitted the
application on December 17, 2012. While the Court might agree that some time
should be excluded from calculating the three year time period on which to serve the
summons and complaint, Plaintiff has not provided specific dates; for example, the
date on which he was informed that the application could not be located, notice of
which would allow the Court to intelligently determine how much time should be
excluded. Indeed, if counsel were informed in September 2012 that the application
had been misplaced and yet did not re-file until December 2012, the Court could not
exclude that time period as it would demonstrate a lack of diligence and thus that
service was not futile based on circumstances beyond her control. Given the absence
of any specific information in counsel’s declaration on this point, the Court simply
cannot exclude any time based on the apparent failure of the Court to locate the
application submitted in July 2012.

With respect to the second application submitted in December 2012, the Court rejects
the contention that Court personnel misplaced documents associated with that
publication. Indeed, while counsel declares that he received a rejection notice
indicating that the it was rejected because he did not submit a declaration despite the
fact that he submitted one, the rejection notice says no such thing. Rather the
rejection notice states that the application required an “affidavit containing a statement
of some fact or facts amounting to legal evidence, having some appreciable tendency
to show the existence of a cause of action against the party upon whom service is to
be made.” (January 8, 2013, Document Returning Plaintiff’s Application for
Publication). Further, the notice indicated that the materials submitted did not
adequately show reasonable diligence. Importantly, the declaration submitted with
that application and attached to the instant opposition, does not contain any statement
of facts showing the existence of a cause of action against Defendant. Thus, the
application was not rejected because the Court somehow overlooked a declaration
that was submitted but rather because the declaration that was submitted was not
sufficient and no time will be excluded in connection with the second application.
Importantly, the initial application submitted in July 2012 was identical to the deficient
December 2012 application and thus solidifies the Court’s decision not to exclude any
time based upon that application, misplaced though it may have been.

Plaintiff then inexplicably waited until September 3, 2013 to file another application for
publication which has yet to be processed by the Court. However, even if the Court
excluded the time from which Plaintiff submitted the September application through the
date of the hearing, this would only amount to an approximate three month extension
of the three year time in which to serve the summons and complaint. However, that
would only give Plaintiff until July 28, 2013, a time which has long passed.

Finally, while Plaintiff argues that the validity of service was challenged because the
listed agent for service of process informed counsel that he was not the agent, this
does not show that the “validity of service was the subject of litigation by the parties”
such that the exception in § 583.240(c) applies.

As a result, Defendant’s motion to dismiss for failure to serve the summons and
complaint within three years as required by CCP § 583.250(a) is granted.

While the notice of motion provides the notice of the Court’s tentative ruling system as
required by CRC Rule 3.1308 and Local Rule 1.06(D), it provides the incorrect
department and time for the hearing. This matter has been assigned to Department 53
for law and motion purposes and the hearing is in Department 53 at 2 p.m.
Defendant’s counsel is ordered to notify Plaintiff’s counsel immediately of the correct
department and time of the hearing.

Defendant’s counsel shall prepare for the Court’s signature an order and judgment of
dismissal pursuant to CRC Rule 3.1312.