Filed 2/20/20 Vinaikin v. American Honda Motor Co., Inc. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE
YURI VINAIKIN et al.,

Plaintiffs and Appellants,

v.

AMERICAN HONDA MOTOR COMPANY, INC.,

Defendant and Respondent. B294316

Los Angeles County

Super. Ct. No. BC558576

APPEAL from a judgment of the Superior Court of Los Angeles County, Dalila C. Lyons, Judge. Affirmed.

Vera Gretchyn Marino and Christopher J. Gansen for Plaintiffs and Appellants.

Musick, Peeler & Garrett, H. Franklin Hostetler III, Cheryl A. Orr and Natasha M. Wu for Defendant and Respondent.

_______________________________________

INTRODUCTION

Absent some exception, a plaintiff must generally serve a defendant with a summons and complaint within three years of the date the original complaint is filed. (Code Civ. Proc., § 583.210, subd. (a).) Failure to comply requires dismissal of the plaintiff’s case. (§ 583.250, subd. (a).)

In September 2014, plaintiffs and appellants Yuri Vinaikin and his wife Olga Vinyakina (plaintiffs) filed a wrongful death action against unknown defendants and Doe defendants 1 through 10, following the death of their son in a solo motorcycle crash. In February 2018, plaintiffs added American Honda Motor Company, Inc. (Honda) and related entities, alleged to be the designers and manufacturers of their son’s motorcycle, as Doe defendants. Honda was served with the summons and complaint in March 2018, approximately three and one-half years after plaintiffs filed their original complaint.

Plaintiffs appeal the trial court’s dismissal of their case against Honda under section 583.250, subdivision (a), for failure to serve the company with the summons and complaint within three years of the original filing. Finding no error, we affirm.

FACTS AND PROCEDURAL BACKGROUND

According to the operative complaint, plaintiffs’ son died in 2012 due to injuries he sustained when he and the Honda motorcycle he was riding collided with a lamppost. Plaintiffs filed a form negligence complaint on September 24, 2014, naming an “unknown” defendant and Doe defendants 1 through 10.

On February 1, 2018, plaintiffs amended their complaint to substitute Honda as a Doe defendant. The same day, plaintiffs filed a first amended complaint stating four causes of action against Honda related to the design, manufacturing, advertising, and warranty of their son’s Honda motorcycle. Plaintiffs served Honda with the first amended complaint on March 2, 2018.

Honda, appearing specially, filed a motion to dismiss the complaint under section 583.210, arguing plaintiffs impermissibly served Honda with the summons and complaint more than three years after they filed their original complaint. Honda also filed a general demurrer to the first amended complaint, asserting that the claims were barred by the applicable two-year statute of limitations.

In opposition to the motion to dismiss, plaintiffs asserted that service of the summons and complaint was timely. Specifically, plaintiffs argued that the three-year service window set forth in section 583.250, subdivision (a), was tolled due to their prior counsel’s misconduct. Indeed, the court had previously set aside an earlier dismissal of plaintiffs’ case on equitable grounds due to counsel’s misconduct, namely, failing to appear for trial on March 24, 2016, which resulted in the dismissal of plaintiffs’ case, and further failing to apprise plaintiffs of the dismissal until October 7, 2016. Plaintiffs urged that the three-year service period should be tolled from March 24, 2016 until May 5, 2017, when the court granted their motion to set aside the dismissal. With the benefit of the tolling period, plaintiffs asserted, their service of the summons and complaint on March 2, 2018 was timely.

The court largely rejected plaintiffs’ argument, noting the exceptions to the mandatory dismissal statute are extremely limited. The court also indicated that plaintiffs were responsible for a good portion of the delay during their proposed tolling period. Specifically, although plaintiffs learned that their case had been dismissed in October 2016, they waited until April 2017 to seek relief from the dismissal. Further, the court observed, after the court vacated the dismissal in May 2017, plaintiffs delayed amending their complaint to substitute Honda as a Doe defendant until February 2018. With these facts in mind, the court found the service window should only be tolled for 22 days—the period between plaintiffs’ filing of the motion to set aside the dismissal and the court’s order granting their request. That brief tolling period only extended plaintiffs’ service window to October 16, 2017. Accordingly, the court found that plaintiffs’ service of the summons and complaint on March 2, 2018 was untimely.

The court heard argument on September 11, 2018, and granted Honda’s motion to dismiss. Judgment in favor of Honda was entered on October 10, 2018. Plaintiffs timely appeal.

DISCUSSION

Ordinarily, a plaintiff must serve a defendant with a summons and complaint within three years of the date the original complaint is filed. (§ 583.210, subd. (a).) Subject to limited and narrowly-construed statutory exceptions, the failure to effect service within that time requires dismissal of the plaintiff’s case. (§ 583.250, subd. (a).) Here, plaintiffs do not dispute that they served Honda with the summons and complaint more than three years after filing their original complaint. But they contend the court erred in not tolling the three-year period by 14 months to compensate for their prior attorney’s misconduct. We disagree.

Section 583.210, subdivision (a), provides that “[t]he summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.” The consequence for noncompliance is severe: Dismissal is mandatory. Section 583.250, subdivision (a), provides that if service is not made in a timely manner, “(1) The action shall not be further prosecuted and no further proceedings shall be held in the action[ ] [and] (2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties.” That section further provides, “[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).)

The service period begins to run on the day the original complaint is filed. (§ 583.210, subd. (a).) The same rule applies where, as here, the defendant seeking dismissal was named as a Doe defendant in the original complaint, later amended to show its true name. (See Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1061 (Inversiones Papaluchi).) Here, then, plaintiffs were required to serve Honda with the summons and complaint no later than September 25, 2017, absent some exception to the three-year rule. They concede they did not serve Honda with the summons and complaint until March 2, 2018.

The Legislature has articulated four conditions that toll the time for service of a summons and complaint. (§ 583.240.) These exceptions to the three-year service period “ ‘must be construed strictly against the plaintiff.’ ” (Inversiones Papaluchi, supra, 20 Cal.App.5th at pp. 1061–1062; Shipley v. Sugita (1996) 50 Cal.App.4th 320, 326 (Shipley).)

Section 583.240 provides that the three-year service period may be extended if:

“(a) The defendant was not amenable to the process of the court.

“(b) The prosecution of the action or proceedings in the action was stayed and the stay affected service.

“(c) The validity of service was the subject of litigation by the parties. [or]

“(d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff’s control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff’s control for the purpose of this subdivision.”

Primarily, plaintiffs contend that service of the summons and complaint was “impossible, impracticable, or futile” between March 24, 2016, when the court dismissed their case, and May 5, 2017 (dismissal period), when the court set aside the dismissal. Specifically, plaintiffs argue that the court had no jurisdiction over the case and no defendants were amenable to service after the court dismissed plaintiffs’ action on March 24, 2016. Service during the dismissal period, plaintiffs assert, was therefore impossible, impractical, or futile. We do not disagree. But the question before us is whether the dismissal period resulted, in whole or in part, from causes beyond plaintiffs’ control.

Graf v. Gaslight (1990) 225 Cal.App.3d 291 (Graf), relied upon by the court here, is instructive. There, a bar patron brought a tort action against the bar, its owner, and an employee. More than two years after the complaint was filed, the court dismissed the case for failure to prosecute. (Id. at p. 294.) Almost six months later, the plaintiff’s counsel moved to set aside the dismissal under section 473, noting that he had been unaware of the dismissal. The court set aside the dismissal. (Graf, at p. 294.) The court later dismissed the case under section 583.250, due to the plaintiff’s failure to serve the defendants with the summons and complaint within the statutory period. (Graf, at p. 294.)

Like plaintiffs here, the plaintiff in Graf argued that the three year period to serve a defendant with a summons and complaint should have been tolled during the period their case had been dismissed because, during that period, service of the summons and complaint was “impossible” or “futile.” The Court of Appeal agreed in part: “We note that it would have been futile for appellant to serve respondents with a summons and complaint in an action that had been dismissed by the court. Such service on respondents during the six-month period in which the case had been dismissed would have been a legal impossibility and conceivably could have exposed appellant to an action by respondents for abuse of process.” (Graf, supra, 225 Cal.App.3d at p. 297.) Further, the court noted that the first dismissal (for failure to prosecute) had likely been due to a mistake of the trial court and not due to any cause within the plaintiff’s control. (Ibid.) Nevertheless, the court stated, “the conclusion does not necessarily follow that any impossibility, impracticability or futility in serving respondents during the period the complaint was dismissed was due to causes beyond [the plaintiff]’s control.” (Ibid.)

Examining the plaintiff’s conduct during the early stages of litigation, the court in Graf observed that the plaintiff had been unaware of the dismissal because his counsel failed to apprise the court of his change of address. Counsel’s failing in that respect was, the court concluded, “within the realm of [plaintiff]’s control” because counsel was obligated to provide the court with his current address. (Graf, supra, 225 Cal.App.3d at p. 297.) The plaintiff also failed to move to set aside the dismissal for almost seven weeks after the dismissal was discovered and further delayed by waiting almost five weeks after the dismissal was set aside to serve one of the defendants. (Id. at pp. 297–298.) In light of all these factors, the Court of Appeal concluded the trial court acted reasonably in tolling the three-year service period for 16 days, i.e., the period between the plaintiff’s request to set aside the first dismissal and the date the court granted that relief. (Id. at p. 298.)

Here, applying Graf, the court tolled the three-year service period for 22 days, from the date plaintiffs requested relief from the first dismissal of their case until the date the court granted such relief. That brief period does not assist plaintiffs, however, as they served the summons and complaint 156 days after the three-year service deadline.

Plaintiffs insist that the court was required to toll the service period for 14 months, from the date their case was dismissed until the date the court granted their request for relief from the dismissal. But like the court in Graf, the court here observed that significant portions of the 14-month delay were due to causes within plaintiffs’ control, including the lengthy delay between their discovery of the dismissal and their motion for relief. In addition, plaintiffs delayed serving Honda even after the court set aside the dismissal. As a result, Honda was served with the summons and complaint nearly five and one-half years after the motorcycle accident at issue.

Plaintiffs also seem to suggest that because the court set aside the first dismissal of their case on equitable grounds due to their attorney’s misconduct, the court was required to toll the three-year service period under section 583.210 for the same reason. Plaintiffs cite no caselaw on point. And their argument was squarely rejected in Shipley, supra, 50 Cal.App.4th 320, a case we see no reason to disagree with in the present case.

In Shipley, the court noted that in adopting the limited service window now found in section 583.210, the Legislature intended to “promote trial before evidence is lost or destroyed, protect defendants from the annoyance of actions that remain undecided indefinitely, and assist the courts in clearing crowded calendars.” (Shipley, supra, 50 Cal.App.4th at p. 323; and see Cal. Law Revision Com. com., 15C West’s Ann. Code of Civ. Proc. (2011 ed.) foll. § 583.240, p. 353 [“[t]he excuse of impossibility, impracticability, or futility should be strictly construed in light of the need to give a defendant adequate notice of the action so that the defendant can take necessary steps to preserve evidence”].) In the case before it, as here, the plaintiff’s attorney committed misconduct resulting in the failure to timely serve the summons and complaint. (Shipley, at p. 323.) The Court of Appeal acknowledged that, in extreme cases, an attorney’s misconduct may not be imputed to the client. Yet, the Legislature chose not to incorporate attorney misconduct into section 583.240 in 1984, when it refashioned the mandatory dismissal statutes. (Shipley, at p. 327.) The court inferred that by excluding attorney misconduct from section 583.240, the Legislature intended to protect defendants from an extension of the mandatory service period where the failure of timely service results from the plaintiff’s attorney’s misconduct, particularly because the plaintiff has other legal remedies against counsel if misconduct results in a dismissal. (Shipley, at p. 327.)

In sum, we conclude, as both the trial court and the court in Shipley did, that “[a]ttorney misconduct does not excuse a plaintiff’s failure to comply with the mandatory service requirements of section 583.210.” (Shipley, supra, 50 Cal.App.4th at p. 328.)

DISPOSITION

The judgment is affirmed. Respondent American Honda Motor Company, Inc. shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.