Case Number: BC549687 Hearing Date: September 09, 2019 Dept: 4B

[TENTATIVE] ORDER RE: MOTION TO DISMISS

On June 24, 2014, Plaintiff Jack Carrillo (“Plaintiff”) filed this action for negligence against “Payless Foods, Inc., doing business in California, Payless Foods Store No. 10, doing business in California, Sergio, last name unknown, and Does 1-50, inclusive” concerning an incident on June 25, 2012. On June 25, 2014, Plaintiff served the Summons and Complaint on Payless Foods, Inc. and Payless Foods Store No. 10. On August 14, 2014, “Payless Foods” filed an Answer.

Nothing was filed for the next year. On August 28, 2015, Plaintiff amended the Complaint to name “Koshan, Inc. dba Payless Foods” as Doe 1.

In later 2015, the Court held two Final Status Conferences where Defendant did not appear. The Court then set an OSC re sanctions and ordered Plaintiff’s counsel to give notice. Plaintiff’s counsel did not do so. On March 3, 2016, the Court set an OSC re dismissal for failure to give notice and an OSC re proof of service of complaint. Plaintiff did not file a proof of service, so on April 1, 2016, the Court continued to the OSC re dismissal and set an OSC re default. On the next date the Court set a trial date for July 20, 2017 and an FSC date for July 7, 2017, with Plaintiff to give notice. Plaintiff did not give notice, so the FSC was continued. When defense counsel did not appear on July 14, 2017, the Court set an OSC re striking the answer and entering default for July 20, 2017. On that date the Court ordered the answer stricken and default entered. The Court set September 28, 2017 as an OSC re default judgment.

On October 5, 2017, the Court noted that a default judgment had been submitted. On December 19, 2017, the Court issued an order rejecting the default package because that Plaintiff sought a default judgment against Koshan, Inc. dba Payless Foods but had not dismissed Payless Foods, Inc. and Payless Foods Store No. 10, which both had been served with the complaint. The Court also noted there was no proof of service of summons on Koshan, Inc. dba Payless Foods. The Court ordered Plaintiff to submit a new request for default judgment addressing these defects.

On February 23, 2018, the Court found Plaintiff did not comply with that order and again ordered Plaintiff to comply. The Court set a default prove-up for April 26, 2018 and an OSC re dismissal for failure to file proof of service for that date.

On April 26, 2018, there were no appearances so the Court dismissed the case.

On May 5, 2018, Plaintiff moved to set the dismissal aside on the ground of attorney mistake. On June 8, 2018, the Court vacated the dismissal and set August 28, 2018 for an OSC re Default/Default Judgment and an OSC re dismissal for failure to file a proof of service. The Court ordered Plaintiff’s counsel to submit a new default judgment package in compliance with the February 23, 2108 order. On August 28, 2018, Plaintiff’s counsel requested an continuance, with the Court granted until November 28, 2018. Plaintiff then submitted default judgment package.

On November 5, 2018, the Court found the underlying default entry was void because there did not appear to be a statement of damage served on Defendants. Also, the Court noted there did not appear to be any default entered against Payless Foods Store No. 10. The Court ordered Plaintiff to serve a statement of damages, seek a new entry of default, and then seek a default judgment. The Court also pointed out other deficiencies in the default judgment package.

On December 13, 2018, Plaintiff filed an Application for Publication to allow service on Payless Foods, Inc. and Payless Foods Store No. 10 by publication. The Applications were rejected on December 27, 2018 due to multiple deficiencies. The Court held multiple OSCs re failure to file default judgment.

On April 18, 2019, Plaintiff filed proofs of service of summons for Payless Foods, Inc. and Payless Foods Store No. 10 showing service on April 2, 2019. On April 26, 2019, Defendant BFRoddco Inc. dba Payless Foods (erroneously sued and named as Payless Food Store No. 10) (“Defendant”) filed an answer. And on June 21, 2019, Defendant filed this motion to dismiss.

“An action shall be brought to trial within five years after the action is commenced against the defendant.” (Code Civ. Proc., § 583.310.) An action is commenced when the complaint is filed. (Code Civ. Proc., §§ 350, 411.10.) If the action is not brought to trial within the time prescribed, the court shall dismiss the action on its own motion or on motion of the defendant, after notice to the parties. (Code Civ. Proc., § 583.360, subd. (a).) These requirements are mandatory and not subject to extension, excuse, or exception except as expressly provided by statute. (Code Civ. Proc., § 583.360, subd. (b).)

In computing the time within which an action must be brought to trial, there shall be excluded the time during which the jurisdiction of the court to try the action was suspended, prosecution or trial of the action was stayed or enjoined, or bringing the action to trial, for any other reason, was impossible, impracticable, or futile. (Code of Civ. Proc., § 583.340, subds. (a)-(c).) The burden is on the plaintiff to avoid the mandatory 5-year dismissal by showing one of the exceptions made by statute or recognized by decisions applies. (Anderson v. Erwyn (1966) 247 Cal.App.2d 503, 505.)

Plaintiff argues that an exception to the five-year rule applies because Defendant’s actions caused delay when, for example, defense counsel failed to appear at hearings, because the five-year period was tolled during the time of the default before it was voided, and because it was the Court’s fault it entered the original default without first requiring Plaintiff to serve a statement of damages.

First, as detailed above, Plaintiff’s counsel failed to give notice of some of the hearings, requiring the Court to reset hearings.

Second, while entry of a default judgment “effectively bring[s] the litigation to a standstill” (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 438), the same is not true of an entry of default. “A default does not render further prosecution of the case impossible. An exercise of reasonable diligence in prosecuting the case when the defendant is in default consists of reasonable efforts to proceed to a hearing on damages and obtain a default judgment. Where such efforts by a plaintiff do not appear within a reasonable time, no principle of fairness forbids dismissal of the action.” (Hughes v. Kimble (1992) 5 Cal.App.4th 59, 69.) “[T]he time between entry of a default and entry of a default judgment should be excluded from the five-year time to bring a case to trial if and only if the court finds the plaintiff used due diligence to obtain entry of the judgment, and that in spite of such due diligence, it was impossible, impracticable, or futile to obtain a judgment.” (Id. at p. 71.)

Plaintiff has not shown that it acted diligently to obtain a default judgment or bring the case to trial. For example, between July 20, 2017, when the court set an OSC re entry of default, and November 5, 2018, when the Court found the underlying default entry was void, Plaintiff failed to submit a non-defective default judgment package. Plaintiff missed dates and asked for continuances. Plaintiff did not follow the Court’s order to remedy deficiencies. Even if the failed attempts to submit a default judgment package could be considered due diligence, Plaintiff has not shown that it was impossible, impracticable or futile to obtain a judgment. Rather, it was Plaintiff’s inadequate default packages and the failure to serve a statement of damages in the first place that were the problems. In addition, thereafter, Plaintiff did not act diligently to serve Defendant or obtain a new entry of default. Plaintiff took five months to serve Defendant after November 5, 2018.

Finally, that the Court entered default without Plaintiff serving a statement of damages did not absolve Plaintiff of the responsibility of serving a statement of damages. Nor did it excuse Plaintiff from acting diligently after the Court found the entry of default void.

Thus, Plaintiff has failed to meet his burden to show an exception applies.

The motion to dismiss is GRANTED.