Filed 2/19/20 Williams v. Chevron U.S.A. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

CARNELL WILLIAMS

Plaintiff and Appellant,

v.

CHEVRON U.S.A.,

Defendant and Respondent.

A155228

(Contra Costa County

Super. Ct. No. C1401437)

Plaintiff Carnell Williams appeals from the trial court’s dismissal of his case for failure to serve defendant Chevron, U.S.A. (Chevron) with the complaint and summons within the three-year period required by law. Because substantial evidence supports the trial court’s finding that Williams’s counsel failed to effectuate timely service, and none of the statutory exceptions to the mandatory service requirement apply, we affirm.

BACKGROUND

A.

Code of Civil Procedure section 583.210, subdivision (a), requires that “the summons and complaint shall be served upon a defendant within three years after” the complaint is filed. (Code Civ. Proc., § 583.210, subd. (a).) In addition, the plaintiff must file a proof of service with the court within 60 days of the expiration of the three-year period for service. (§ 583.210, subd. (b).) When the defendant is not served within the required timeframe, dismissal of the lawsuit is mandatory. (§ 583.250, subd. (a); see, e.g., Watts v. Crawford (1995) 10 Cal.4th 743, 748, 763 (Watts).) Section 583.250 provides that “[t]he requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” (§ 583.250, subd. (b).)

B.

Williams filed this lawsuit on August 5, 2014, alleging that he was harmed by a fire that occurred on August 6, 2012, at the Chevron refinery located in Richmond, California. Because there were multiple lawsuits against Chevron alleging injuries caused by the same refinery fire, several such lawsuits were coordinated for pre-trial purposes, with another case (not Williams’s) designated as the lead case. Attorneys representing Williams made appearances at several case management conferences for the coordinated cases, alongside Chevron’s attorneys. One of Williams’s attorneys, Gregory Harper, filed three case management statements in January, March, and May of 2015 representing to the Court that Chevron had not been served. It is undisputed that no proof of service of the complaint and summons was filed within the statutory deadline.

In May 2018, Chevron moved to dismiss the case pursuant to section 583.250 based on Williams’s failure to serve the summons and complaint within three years of the commencement of the action. In support of its motion, Chevron submitted a declaration executed in 2018 from its agent for service of process, stating that although its practice is to save an electronic record of every document served at its office, a search of its records revealed no record of a complaint or summons in the instant case having been received until April 18, 2018. In addition, Chevron relied on the case management statements filed by attorney Harper stating Chevron had not yet been served.

Williams opposed the motion, contending that he had in fact served Chevron within three years of filing his complaint. He submitted a declaration executed in 2018 by process server Michael Brocks, asserting that Brocks served Chevron on August 15, 2014, and completed the proof of service. Brock’s declaration stated that he “remember[s] being instructed to mail the proof of service to” Harper’s co-counsel (who later died in January 2018), but does not assert that he actually mailed it to him. In addition, Williams submitted a declaration from attorney Harper, stating that he hired Brocks to serve the summons and complaint on August 15, 2014, and that he “was advised that the summons and complaint had indeed been served.” After his initial opposition was briefed, Williams filed a supplemental pleading attaching a copy of a proof of service completed by Brocks, indicating that the complaint and summons were served on August 15, 2014. The proof of service was not file stamped and was never filed with the court.

The trial court found that Chevron had not been served within three years of the commencement of the action, relying on Williams’s case management statements indicating that the complaint was not served, as well as the declaration from Chevron’s agent. Because Brocks was not a registered process server, the court found that his declaration was not entitled to an evidentiary presumption under Evidence Code section 647, and found that it was likely Brocks was mistaken. Accordingly, the court granted Chevron’s motion to dismiss the complaint. Williams’s appeal followed.

DISCUSSION

A.

Substantial evidence supports the trial court’s conclusion that Williams’s counsel failed to timely serve Chevron. Although in 2018 his counsel unearthed a copy of a proof of service completed by his process server dated August 2014, that proof of service was never filed with the court, and the long delay in producing the proof of service undermines its reliability. (See Graf v. Gaslight (1990) 225 Cal.App.3d 291, 295 (Graf) [length of time between alleged service and filing of proof of service with court “raises serious doubt as to the veracity of the alleged service of process”], disapproved of on other grounds by Watts, supra, 10 Cal.4th 743.) Williams’s other evidence that his process server completed service in 2014 consists of declarations submitted four years after the relevant events, which conflict with other documents filed on his behalf. Attorney Harper filed three separate case management statements in 2015 asserting that Chevron had not been served. In his briefs, Harper provides unsworn statements that the reason for the “erroneous” information in the case management statements was the failure to communicate with co-counsel. Yet his declaration asserts that he himself “was advised” that service was already completed in August 2014, suggesting that communication with co-counsel was irrelevant since he was the same attorney who completed the case management statements. These inconsistencies, together with evidence from Chevron’s agent asserting that a search of their business records indicated that no complaint or summons was served until 2018, suffice to support the trial court’s finding that service of the summons and complaint was untimely.

B.

Williams contends that, even if the trial court’s factual finding was correct, the failure to timely serve Chevron should be excused for a variety of reasons. We disagree.

When a plaintiff violates the mandatory service requirement, dismissal is mandatory absent a statutory exception (§ 583.250, subds. (a)-(b)), such as estoppel or waiver. (§ 583.140; see, e.g., Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1397-1400 (Sanchez).) The application of a statute to a set of undisputed facts is a legal question that we review de novo. (International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611.)

Before discussing the merits, however, we observe that Williams’s briefs are themselves problematic. It is the appellant’s burden to demonstrate error. (See, e.g., Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 379.) Appellant must properly raise all of his issues and arguments in the opening brief, and the court may disregard issues or arguments that are omitted, inadequately discussed, or unsupported by citations to authority and to the record. (See id.; People v. Stanley (1995) 10 Cal.4th 764, 793.) These are not merely technical requirements. The failure to follow these rules is unfair to the appellate court and to the other parties. They should not have to anticipate issues not raised by the appellant himself until a reply brief or oral argument. (See, e.g. People v. Tully (2012) 54 Cal.4th 952, 1075; Webber v. Clarke (1887) 74 Cal. 11, 13.) We thus deem forfeited any estoppel argument and other issues that appellant raised for the first time at oral argument.

Even if he had properly asserted estoppel, the argument would fail. It is true that Chevron’s attorneys appeared to represent its interests in the related cases that were coordinated for pre-trial purposes and Williams’s counsel attended such hearings. But Williams points to no affirmative conduct by Chevron that misled him into thinking service was accomplished or waived in his case. (See, e.g., Sanchez, supra, 203 Cal.App.3d at pp. 1399-1401 [defendant’s participation in depositions in cases consolidated for trial with plaintiff’s case did not estop defendant from moving to dismiss based on lack of service, where there was no discovery unique to plaintiff’s case]; Lesko v. Superior Court (1982) 127 Cal.App.3d 476, 485-487 (Lesko) [no estoppel based on defendant’s participation in settlement negotiations with plaintiff].)

Further, a defendant’s knowledge of the lawsuit does not alleviate the plaintiff of the obligation to serve the defendant with the complaint and summons. (See, e.g., Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1152-1153 (Renoir); Bishop v. Silva (1991) 234 Cal.App.3d 1317, 1323-1324; Elling Corp. v. Superior Court (1975) 48 Cal.App.3d 89, 98 (Elling).) A defendant has no duty to inform a plaintiff that it has not been served or that it intends to pursue its right to dismissal based on a failure of service. (See, e.g., Sanchez, supra, 203 Cal.App.3d at p. 1400; Lesko, supra, 127 Cal.App.3d at p. 486.) And the statute imposes a mandatory duty to serve the defendant without regard for whether the defendant would be prejudiced. (See Elling, supra, 48 Cal.App.3d at p. 98 [predecessor statute contained no prejudice requirement for mandatory dismissal]; Shipley v. Sugita (1996) 50 Cal.App.4th 320, 326 (Shipley) [refusing to read into the statute “another exception to the rule of mandatory dismissal” that does not exist in the text].)

Williams’s reliance on Davis v. Allstate Ins. Co. (1989) 217 Cal.App.3d 1229 (Davis), is misplaced. Davis held that where a plaintiff mistakenly served the defendant with an earlier version of the complaint that was nearly identical in all material respects to the operative complaint, the plaintiff had satisfied the service requirement. (See Id. at pp. 1233-1234 [“timely service of summons and complaint is not invalid because of defects in form which do not frustrate the statutory purpose”].) Here, there has been a total failure of compliance, rather than immaterial defects in the form of service. (See Renoir, supra, 123 Cal.App.4th at p. 1153 [“When, as here, there is a complete failure to comply with statutory requirements, there can be no substantial compliance with those” requirements].) Davis does not provide support for Williams’s suggestion that service of the complaints in the other Chevron refinery fire cases satisfies the service requirement in his case.

Finally, we reject Williams’s contention that failure of service should be excused because of the public policy that favors resolving claims on the merits. The cases he cites do not involve mandatory dismissal for failure of service. (See Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 398 [discussing role of plaintiffs’ delay in determining whether to grant continuance request]; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1085 [construing Civil Code provision on the movant’s burden of proof at summary judgment]; Cordova v. Vons Grocery Co. (1987) 196 Cal.App.3d 1526, 1532 [concerning Civil Code provision authorizing discretionary dismissal for failure to prosecute].) Moreover, section 583.250 “was meant to clarify that the service requirement is mandatory, . . . and that the courts may not develop additional exceptions not provided for in the statutory scheme.” (Shipley, supra, 50 Cal.App.4th at p. 324.) The policy behind mandatory dismissal for failure to comply with the service requirement necessarily “ ‘conflicts with the strong policy in favor of resolving litigation on the merits rather than on procedural grounds.’ ” (Id. at p. 323.) Accepting Williams’s argument would eviscerate the plain text of the statute because dismissal always precludes resolution on the merits.

DISPOSITION

The judgment is affirmed.

 

_________________________

BURNS, J.

WE CONCUR:

_________________________

JONES, P. J.

_________________________

SIMONS, J.

A155228