2010-00085696-CU-PA

Edward Quijada vs. Ford Motor Company

Nature of Proceeding: Motion to Dismiss (Tap Worldwide, LLC)

Filed By: Pitha, Martin L.

Defendant TAP’s Motion to Dismiss is denied.

TAP’s Request for Judicial Notice is granted.

This is a complex products liability action against multiple parties involved in the
stream of commerce related to the vehicle involved in a roll over accident. Defendant
TAP Worldwide, LLC (“TAP”) moves for discretionary dismissal of the Complaint
pursuant to California Code of Civil Procedure sections 418.10(a)(3), 583.410, and
583.420, on the ground that it was served as a DOE more than two years after the
initiation. Defendant and Cross-Complainant Maita Investments, Inc. successfully
sought leave to sue TAP Worldwide for indemnity in January 2013 and TAP contends
plaintiff unreasonably delayed in failing to serve their DOE amendment until the last
day it could be served under the mandatory dismissal statute for failure to serve within
three years of the filing of the Complaint.

In opposition, Plaintiff contends that when Maita first sought to add TAP and Trans
Disso to the Cross-complaint, it was unclear whether TAP had been negligent in
installing the lift kit, suspension, and wheel and tire package on the vehicle. Plaintiff
served contention interrogatories in February of 2013 asking Maita if it contended TAP
was negligent. Maita’s response in July of 2013 stated it did not contend “at this time”
that TAP/Trans Disso’s actions were a legal cause of plaintiff’s injuries. However, due
to Maita’s claim for indemnity against TAP, plaintiffs were reasonably concerned that
Maita might amend its responses after the three year period for serving the summons
and complaint expired, and therefore plaintiffs made the decision to name moving
party as a DOE.

Pursuant to CCP 583.420, the court may dismiss an action for delay in prosecution if
service is not made within two years after the action is commenced against the
defendant. CCP 583.420(a)(1). The following matters are relevant and must be
considered by the Court in a discretionary dismissal motion pursuant to CCP 583.410,
583.420 (see, also CRC 3.1342). In ruling on the motion, the court must consider all
matters relevant to a proper determination of the motion, including: (1) The court’s file
in the case and the declarations and supporting data submitted by the parties and,
where applicable, the availability of the moving party and other essential parties for
service of process; (2) The diligence in seeking to effect service of process; (3) The
extent to which the parties engaged in any settlement negotiations or discussions; (4)
The diligence of the parties in pursuing discovery or other pretrial proceedings,
including any extraordinary relief sought by either party; (5) The nature and complexity
of the case; (6) The law applicable to the case, including the pendency of other
litigation under a common set of facts or determinative of the legal or factual issues in
the case; (7) The nature of any extensions of time or other delay attributable to either
party; (8) The condition of the court’s calendar and the availability of an earlier trial
date if the matter was ready for trial; (9) Whether the interests of justice are best
served by dismissal or trial of the case; and (10) Any other fact or circumstance
relevant to a fair determination of the issue. Rule 3.1342(e).

Under the circumstances, the Court denies the motion to dismiss on the ground that
the above factors do not weigh in favor of dismissal. CRC 3.1342. TAP admits in its
motion that plaintiffs were not aware of TAP’s involvement until January 2013, more
than two years after the Complaint was filed. Any delay in serving the moving party
was the result of Maita’s delay in bringing an indemnity claim against TAP/TransDisso.
The proposed cross-complaint alleged, in pertinent part, that cross-defendants’
products, including but not limited to the lift kit, were defective, and the installation of
component parts was negligent, and that such negligence contributed as a substantial
factor in causing plaintiffs’ harm (see e.g. Cross-complaint para. 24). The Cross-
complaint filed on February 28, 2013 contains the identical allegation at para. 24.
Maita’s First Amended Cross-Complaint, filed on April 2, 2013, contains an identical
allegation at para. 24.

Plaintiff diligently sought discovery on TAP’s potential liability and finally obtained a
discovery response (after obtaining a court order) that Maita did not have evidence to
support a claim that TAP/Transdisso were negligent. Plaintiffs acted reasonably in
DOEing in moving party and serving them after the two year discretionary period had
run, because plaintiffs had no reason to believe these parties were negligent until
Maita sought to allege an indemnity claim against the entities they contracted with to
modify the vehicle. It was reasonable and excusable to serve moving party after the
two year discretionary period because they were not aware of the potential negligence
of these parties until after the two year period had expired. The timing of the service
was excusable an necessary to avoid a potential “empty chair” defense. This is not a
case where plaintiffs were aware of TAP’s liability from the outset but made no effort to
serve them. The DOE amendments and service occurred within a matter of months
after the potential liability was discovered and after discovery was propounded by
plaintiff.

Once plaintiffs have shown a reasonable excuse for the late service, the burden shifts
to TAP to show prejudice. Putnam v Clague (1992) 3 Cal.App.4th 542, 564. A defendant is not expressly required by statute or rule of court to show prejudice in
order for the court to grant a motion for discretionary dismissal. See CCP secs.
583.410-583.430. Nevertheless, a court must consider the totality of circumstances of
the case in order to exercise its discretion properly in considering whether to dismiss
an action under Code of Civil Procedure Section 583.420(a). TAP had actual
knowledge of the lawsuit before the two year discretionary service period expired when
records were subpoenaed on July 30, 2012. Although the entities that contracted with
Maita to install the lift kit (TAP and TransDisso’s predecessors in interest) were defunct
before the lawsuit was filed, leading to difficulty in finding documents and witnesses,
TAP has not established that the difficulty in locating evidence is any worse because
the service of the summons and complaint was made more than two years after the
Complaint was filed. Prejudice is not presumed unless the plaintiff’s excuse for the
delay is not reasonable or the delay is unexplained. Terzian v County of Ventura
(1994) 24 Cal.App.4th 78, 83.

The argument first made in the Reply that TAP is not a proper DOE defendant on the
ground there are no allegations in the Complaint which can be read against TAP is
rejected as untimely. The moving papers sought only to dismiss for delay in
prosecution and to quash for failure to obtain prior court order allowing the DOE
amendment.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item 2 2010-00085696-CU-PA

Edward Quijada vs. Ford Motor Company

Nature of Proceeding: Motion to Dismiss (Transamerican Dissolution, LLC)

Filed By: Stanger, Rachel D.

Defendant Transamerican Dissolution’s (“Trans Disso”) Motion to Dismiss is denied.

This is a complex products liability action against multiple parties involved in the
stream of commerce related to the vehicle involved in a roll over accident. Defendant
Trans Disso moves for discretionary dismissal of the Complaint pursuant to California
Code of Civil Procedure sections 418.10(a)(3), 583.410, and 583.420, on the ground
that it was served as a DOE more than two years after the initiation of the action.
Defendant and Cross-Complainant Maita Investments, Inc. successfully sought leave
to sue TAP Worldwide for indemnity in January 2013 and Trans Disso contends
plaintiff unreasonably delayed in failing to serve their DOE amendment until the last
day it could be served under the mandatory dismissal statute for failure to serve within
three years of the filing of the Complaint.

In opposition, Plaintiff contends that when Maita first sought to add TAP and Trans
Disso to the Cross-complaint, it was unclear whether either party had been negligent in
installing the lift kit, suspension, and wheel and tire package on the vehicle Plaintiff
served contention interrogatories in February of 2013 asking Maita if it contended TAP
was negligent. Maita’s response in July of 2013 stated it did not contend “at this time”
that TAP/Trans Disso’s actions were a legal cause of plaintiff’s injuries. Due to Maita’s
claim for indemnity against TAP, plaintiffs were reasonably concerned that Maita might
amend its responses after the three year period for serving the summons and complaint expired, and therefore plaintiffs made the decision to name moving party as
a DOE.

Pursuant to CCP 583.420, the court may dismiss an action for delay in prosecution if
service is not made within two years after the action is commenced against the
defendant. CCP 583.420(a)(1). The following matters are relevant and must be
considered by the Court in a discretionary dismissal motion pursuant to CCP 583.410,
583.420. In ruling on the motion, the court must consider all matters relevant to a
proper determination of the motion, including: (1) The court’s file in the case and the
declarations and supporting data submitted by the parties and, where applicable, the
availability of the moving party and other essential parties for service of process; (2)
The diligence in seeking to effect service of process; (3) The extent to which the
parties engaged in any settlement negotiations or discussions; (4) The diligence of the
parties in pursuing discovery or other pretrial proceedings, including any extraordinary
relief sought by either party; (5) The nature and complexity of the case; (6) The law
applicable to the case, including the pendency of other litigation under a common set
of facts or determinative of the legal or factual issues in the case; (7) The nature of any
extensions of time or other delay attributable to either party; (8) The condition of the
court’s calendar and the availability of an earlier trial date if the matter was ready for
trial; (9) Whether the interests of justice are best served by dismissal or trial of the
case; and (10) Any other fact or circumstance relevant to a fair determination of the
issue. Rule 3.1342(e).

Under the circumstances, the Court denies the motion to dismiss on the ground that
the factors do not weigh in favor of dismissal. CRC 3.1342. Plaintiffs were not aware
of Trans Disso’s potential negligence until January 2013, more than two years after the
Complaint was filed. Any delay in serving the moving party was the result of Maita’s
delay in bringing an indemnity claim against TAP/TransDisso.
The proposed cross-complaint alleged, in pertinent part, that cross-defendants’
products, including but not limited to the lift kit, were defective, and the installation of
component parts was negligent, and that such negligence contributed as a substantial
factor in causing plaintiffs’ harm (see e.g. Cross-complaint para. 24). The Cross-
complaint filed on February 28, 2013 contains the identical allegation at para. 24.
Maita’s First Amended Cross-Complaint, filed on April 2, 2013, contains an identical
allegation at para. 24.

Plaintiff diligently sought discovery on Trans Disso’s potential liability and finally
obtained a discovery response (after obtaining a court order) that Maita did not have
evidence to support a claim that TAP/Transdisso were negligent. Plaintiffs acted
reasonably in DOEing in moving party and serving them after the two year
discretionary period had run, because plaintiffs had no reason to believe these parties
were negligent until Maita sought to allege an indemnity claim against the entities they
contracted with to modify the vehicle. It was reasonable and excusable to serve Trans
Disso after the two year discretionary period because Plaintiffs were not aware of the
role of these parties until after the two year period had expired. The timing of the
service was excusable an necessary to avoid a potential “empty chair” defense. This
is not a case where plaintiffs were aware of TAP’s liability from the outset but made no
effort to serve them. The DOE amendments and service occurred within a matter of
months after the potential liability was discovered and after discovery was propounded
by plaintiff.

Once plaintiffs have shown a reasonable excuse for the late service, the burden shifts to TAP to show prejudice. Putnam v Clague (1992) 3 Cal.App.4th 542, 564. TAP had
actual knowledge of the lawsuit before the two year period expired when records were
subpoenaed on July 30, 2012. Although the entities that contracted with Maita to
install the lift kit (TAP and TransDisso’s predecessors in interest) were defunct before
the lawsuit was filed, leading to difficulty in finding documents and witnesses, TAP has
not established that the difficulty in locating evidence is any worse because the service
of the summons and complaint was delayed for more than two years. Prejudice is not
presumed unless the plaintiff’s excuse for the delay is not reasonable or the delay is
unexplained. Terzian v County of Ventura (1994) 24 Cal.App.4th 78, 83.

The case of Clark v. Stabond Corp.(1987) 197 Cal. App. 3d 50, is not on point
because in that case the plaintiffs had not been diligent, having left the case dormant
for the two years after it was filed.

Plaintiffs may have known since the outset that the vehicle was equipped with an after-
market suspension and tire package. However, plaintiffs have explained that it was
not until Maita’s cross-complaint for indemnity was filed that the issue of Trans Disso’s
negligence was raised.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.