2010-00076734-CU-OR

Travis Gaffney vs. Larry E Goodrow

Nature of Proceeding: Motion to Dismiss Action for Failure to Serve Action within Three Years

Filed By: Schmid, Frear Stephen

***If any party requests oral argument, then the hearing will be held at 9:00AM in
this department on Tuesday, March 11, 2014–not March 10, 2014.***

The court rules as follows on the motion of Defendants Greg Blunden, Pamela
Blunden (collectively the “Blundens”) and Philip Malaspina (“Malaspina”) (collectively
“Defendants”) to dismiss for failure to serve summons, failure to prosecute, and to quash service of summons and vacate entries of default and default judgment:

Preliminarily, the court notes Plaintiff Travis Gaffney’s (“Gaffney”) argument that,
because Defendants’ defaults were entered, Defendants are not entitled to take any
action in the case other than to attempt to set aside the defaults (and default
judgments). CCP §§ 473 and 473.5 govern motions to set aside defaults. Gaffney
appears to reason that, because the moving papers do not cite either of these statutes,
the court may not rule on the motion. The court rejects this argument and construes
the motion as encompassing a request for relief from default pursuant to CCP § 473
(d). Furthermore, at least one appellate court has allowed a motion to quash for lack
of proper service to serve as the means for obtaining an order setting aside a default.
(See Dill v. Berquist Constr. Co., Inc. (1994) 24 Cal.App.4th 1426, 1443.) In addition,
where an action must be dismissed for failure to serve summons within the statutory
deadline, a party entitled to such a dismissal may appear for such purpose
notwithstanding that his/her default was previously entered. (See Sharpstein v. Eells
(1901) 132 Cal. 507, 507-508.)

Defendants are entitled to mandatory dismissals under CCP §§ 583.210 and 583.250.
Under those sections, Gaffney was required to serve the summons and complaint
within three years from commencement of the action. Gaffney commenced the action
on April 29, 2010. As Defendants note, Gaffney was not required to serve the
summons and complaint by April 28, 2013–three years after commencement–because
interim events extended the limitations period. Specifically, Defendants challenged
service of the summons and complaint on March 22, 2012, on April 24, 2012, and
again on August 6, 2012. Each challenge tolled the three-year period until the court
ruled on the challenge. (CCP § 583.240(c).) The court calculates the tolled period to
be 97 days, which ended on August 3, 2013, a Saturday. Pursuant to CCP § 12a,
Gaffney needed to effect service by August 5, 2013, a Monday.

Gaffney did not effect service by August 5, 2013. He purported to serve Malaspina on
August 18, 2013. (See Opp. at 7:11.) Furthermore, although Gaffney contends that
he completed substitute service on the Blundens on July 31, 2013, substitute service is
not effective until 10 days after the process server mailed a copy of the summons and
complaint to the service address. (See CCP § 415.20(b).) Thus, the substitute service
could not have taken effect until August 10, 2013, which was after the three-year
limitations period expired. Because Gaffney did not effect service on Defendants
within the three-year period, the court must dismiss the action against them. (CCP §
583.250.)

In reaching its conclusion, the court rejects Gaffney’s argument that the three-year
period was tolled for an additional 41 days while he tended to his ill mother. Gaffney
does not cite any authority for this proposition. Furthermore, because Gaffney did not
personally serve Defendants, his unavailability did not prevent service from being
effected. (See Tzolov v. Internat. Jet Leasing, Inc. (1989) 214 Cal.App.3d 325, 326-
327 [plaintiff who was incompetent due to head injuries was not excused during period
of incompetence from serving process within the three-year period].)

The court likewise rejects Gaffney’s argument that service was “impossible” once
Malaspina asked him to discuss settlement without proceeding with litigation. Again,
Gaffney cites no authority to support his argument, and the court is not persuaded.

Even if substitute service on the Blundens would have been timely on August 10, 2013, the court would vacate the defaults and default judgment entered against these
Defendants, and dismiss the action against them, because Gaffney did not effect valid
substitute service at that time. Gaffney argues that valid substitute service was made
on the Blundens when Dave DiSalvo (“DiSalvo”) handed the papers to “Nicole” at what
he characterizes as the Blundens’ residence address. The proofs of substitute service
indicate that Nicole was Nicole Blunden, the Blundens’ daughter. However, the
Blundens both assert that they do not have a daughter. Moreover, DiSalvo admits in
his declaration that he assumed, but did not confirm, that the young woman who
accepted the papers from him was related to the Blundens.

Furthermore, the Blundens note that the address where substitute service was
purportedly made is their mailing address, not their home address. They assert that,
at all relevant times, they have resided at another address and have been available
there for service of process. Thus, they argue that DiSalvo did not perform his due
diligence by attempting to effect personal service at their mailing address.

The court continued the hearing to today’s date to allow Gaffney to file supplemental
evidence in response to the Blundens’ assertion, made for the first time in their Reply
papers, that the address where service was purportedly effected was merely their
mailing address, not their residence address. Specifically, the court allowed Gaffney
to file additional evidence of the investigation DiSalvo undertook before determining
that the address where he left the summons and complaint was the Blundens’
residence. If DiSalvo undertook a reasonable investigation revealing that that address
was the Blundens’ residence, then he arguably effected valid substitute service when
he attempted personal service, subsequently left the papers with “Nicole,” and mailed
a copy to the same address thereafter. (See Ellard v. Conway (2001) 94 Cal.App.4th
540, 542-545.) On the other hand, if DiSalvo’s investigation indicated that the address
where substitute service was made was not a residence address, then his attempts at
personal service there did not satisfy the due-diligence requirements associated with
substitute service.

Gaffney did not submit supplemental evidence bearing upon any pre-service
investigation that DiSalvo may have undertaken personally. Instead, he filed a
supplemental declaration from DiSalvo’s supervisor, Ken Edick (“Edick”). In the
supplemental declaration, Edick asserts that the Blundens did not have separate
mailing and residence addresses when DiSalvo attempted service. According to
Edick, there is only one address, which is 4275 Redwood Retreat Road. This is the
address where DiSalvo purportedly effected service. According to Edick, Redwood
Retreat is a private road that some locals in the area refer to as “Vignoble.” Thus,
whereas the Blundens assert that they lived at a Vignoble address and received mail
at a Redwood Retreat address, Edick argues that the two are one and the same.

The court rejects the position of Edick and Gaffney due to the absence of supporting
evidence that is admissible. There is no foundation for Edick’s assertion that Redwood
Retreat is also known as Vignoble. Similarly, whereas Edick asserts that the
information in Exhibits A, B and I to his supplemental declaration links the Blundens to
the Redwood Retreat address, there is nothing establishing that the information is
drawn from a reliable source. In fact, the small-print disclaimer at the bottom of Exhibit
B indicates that some of the information in the exhibit might be out of date or
inaccurate. Moreover, Edick’s assertion about what Assessor records indicate is
inadmissible hearsay.
Because the critical assertions in Edick’s supplemental declaration are inadmissible,
Gaffney has failed to demonstrate that DiSalvo or Edick exercised reasonable
diligence before resorting to substitute service at the Redwood Retreat address.
Accordingly, DiSalvo did not effect valid substitute service on August 10, 2013.

Defendants’ objections to evidence are SUSTAINED.

Gaffney’s objections to evidence are OVERRULED.

The parties’ requests for judicial notice of court documents are GRANTED.

Defendants’ motion for mandatory dismissal of the action against them due to
Gaffney’s failure to serve summons within three years from commencement of the
action is GRANTED. (See CCP §§ 583.210, 583.250.)

The defaults and default judgments entered against Defendants are VACATED, and
the action against them is DISMISSED with prejudice.

The balance of the motion is DENIED as moot.

Pursuant to CRC 3.1312, Defendants are directed to lodge for the court’s signature a
formal order and separate judgments of dismissal.