2015-00179015-CU-PA

Gurmit Singh vs. Duane A. Love

Nature of Proceeding: Motion to Dismiss

Filed By: Snook, Terrence T.

Defendant Duane A. Love, II and Estate of Duane A. Love, Sr. (deceased) sued herein as Doe 1, Motion to Dismiss for Delay in Prosecution for failure to serve within two years of filing the complaint is denied. CCP 583.410, CCP 583.420.

This case involves an automobile accident that took place on June 20, 2013. Plaintiff alleges that he was broad-sided by a vehicle being driven on the shoulder of the road at 50 miles an hour by Duane A. Love, II. The vehicle was owned by Duane A. Love, Sr. The Complaint was filed on May 11, 2015. Defendant Duane A. Love II was personally served with the summons and complaint on December 5, 2017, more than two years and seven months from the commencement of the action. Duane A Love Sr. was not served when he was alive. Defendants contend that after he passed away, the Estate of Duane A. Love Sr., named as a Doe, was never served. However, the register of actions shows that the Estate of Duane A. Love Sr. filed a General Denial along with his son Duane A. Love, II on March 12, 2018. Therefore, the estate is estopped from arguing it was never served with the summons and complaint since it has actually appeared in this action. A defendant can waive service of process by making a general appearance in the action. Fireman’s Fund Ins. Co. v Sparks Constr. Inc. (2004) 114 Cal.App.4th 1135, 1145; Titus v. Superior Court (1972) 23 Cal. App. 3d 792, 800-801, Greener v. Workers’ Comp. Appeals Bd. (1993) 6 Cal 4th 1028, 1036-1037.) Filing an answer on the merits constitutes a general appearance. CCP 1014. Indeed, “A general appearance by a party is equivalent to personal service of summons on such party.” (Code Civ. Proc., § 410.50, subd. (a); see also Hamilton v. Asbestos Corp., (2000) 22 Cal. 4th 1127, 1147).

Pursuant to CCP 583.410(a), “The Court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on the motion of the defendant if to do so appears to the court appropriate under the circumstances of the case. CCP 583.420(a)(1) provides that service not being made within two years after the action is commenced is one of the grounds for discretionary dismissal.

Discretionary dismissal of an action pursuant to the above-referenced section should be granted unless plaintiff makes some showing of good cause or justification that explains and justifies the delay in service of process.

Trailmobile. Inc. v. Superior Court (1989) 210 Cal.App 3d 1451, 1455) If defendants show prejudice and plaintiff is unable to show good cause or justification for the delay, the court does not abuse its discretion in dismissing the action. San Ramon Valley Unified School District v. Wheatley-Jacobsen, Inc. (1985) 175 Cal.App.3d 1050, 1057. However, prejudice to defendant is not a necessary factor to support a discretionary dismissal, because the policy of sections 583.410 – 583.420 of the Code of Civil Procedure is also to expedite the administration of justice by compelling every person who files an action to prosecute it with promptness and diligence. Blank v. Kirwan (1985) 39 Cal.3d 311, 332.

In opposition, plaintiff states that service was attempted eleven times between July 14 and August 16, 2016. After adding the Estate of Duane Love Sr as a DOE defendant on July 19, 2016, eleven attempts were made to serve defendants. (See Declaration of Jesse Rivera) When those attempts failed, plaintiff filed an Application for Order for Publication of Summons on September 14, 2016. The request was denied by the court on December 2, 2016. Plaintiff subsequently attempted service by mail on January 20, 2017 but was unsuccessful because the certified mail was rejected. Thereafter, after a private investigator was hired, service was effected on defendants on December 5, 2017. Although the proof of service did not list the estate as being a party served, the estate voluntarily appeared in the action by filing an Answer on March 12, 2018.

The Court denies the discretionary dismissal as to both defendants as it was impracticable to serve defendants for at least 18 months due to them not being amenable to service and evading service. Plaintiff was diligent for over 18 months attempting to effect service of the summons and complaint numerous times, then resorting to attempting to serve the summons and complaint by publication before finally serving the individual defendant in December of 2017. Both defendants appeared in the action Plaintiff has presented evidence that defendants were evading service of process. The moving papers contain no evidence as to defendants’ availability to service of process. No reply was timely filed. See e.g. Cal Rules of Court, Rule 3.1342(e).