2013-00156547-CU-BT

Carole L. Clarke vs. NRT West, Inc.

Nature of Proceeding: Motion to Dismiss

Filed By: Koss, Charles A.

Defendant Jeff Talani’s Motion to Dismiss pursuant to the mandatory dismissal statutes, CCP 583.210 and 583.250, is granted.

The Complaint was filed on December 23, 2013 and the summons was issued on January 14, 2014. Jeff Talani was served on September 21, 2018 and proof of service on Jeff Talani was filed with the court on October 18, 2018. Since more than three years has elapsed from the commencement of the case and from the time summons and complaint was served on defendant Talani, dismissal is mandatory.

CCP 583.210 provides (a) The 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. (b) Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant.

(a) If service is not made in an action within the time prescribed in this article:

(1) The action shall not be further prosecuted and no further proceedings shall be held in the action.

(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.

(b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.

In opposition, self represented plaintiff contends that since counsel did not list Defendant Talani in the caption of the motion as one of the parties he represents, the motion must be denied and deemed “null and void.” There is no authority for this proposition. In addition, plaintiff contends that counsel for Thomas accepted service of the Summons and Complaint for all defendants. She attaches as Exhibit 19 a proof of service of the Summons, Complaint, Notice of Acknowledgment and Receipt and related documents. She also attaches a copy of her former counsel’s billing records that contain an entry “telephone call to Stephen Thomas, attorney for NRT West, Inc., dba Coldwell Banker Residential Brokerage re: accepting service on defendants.” (Ex. 21)

On February 28, 2014, a Verified Answer to the Complaint was filed but it did not include Jeff Talani as a defendant. Plaintiff further contends that in February 2014 plaintiff’s former counsel delivered a Request for Dismissal to counsel for defendants, Stephen Thomas dismissing the action, “without prejudice,” and that Mr. Thomas made a material misrepresentation of facts by failing to file the dismissal. Plaintiff attaches to her opposition billing records from counsel contain an entry “preparation of correspondence to opposing counsel re Defendant Jeff Talani, Demurrer, Request for Dismissal Without Prejudice of Verified Complaint as to Defendant, Jeff Talani, and Stipulation. Finally, plaintiff contends that the three year dismissal statute was “waived” by Judge De Alba when he denied the OSC re Dismissal under the discretionary dismissal statues for failure to bring the case to trial within five years in the court’s case management system. (See Exhibit 25 to Opposition.)

Plaintiff contends that the dismissal without prejudice in February 2014 would have allowed Talani to be reinstated as a defendant. Without addressing this contention, and putting aside any statute of limitations issue that might arise from such an action, the court notes that a dismissal under the Dismissal for Delay in Prosecution statutes is also a dismissal without prejudice. See CCP 581(g).)

In reply, defendant objects to the billing records as support for plaintiff’s arguments and the court sustains the evidentiary objection to the billing records on the basis of hearsay. However, even if the evidence is admissible, the records support defendant’s argument that Talani was never served. Counsel for plaintiff states that he served a Notice of Acknowledgment and Receipt, yet no notice that the notice of acknowledgement and receipt included Talani nor whether it was ever signed, rendering service effective. And, although the Request for Dismissal was prepared by plaintiff’s former counsel, there is no evidence in the billing records that it [the Request for Dismissal] was ever sent to counsel for defendant. Moreover, the Request for Dismissal must be signed by plaintiff’s counsel, not defendant’s counsel. Therefore defendant contends that plaintiff’s counsel never filed the Request for Dismissal of Talani, which was his responsibility, not defendant’s.

The Court finds that Talani was never served with the summons and complaint until

2018, and therefore this case is subject to a mandatory dismissal. None of the factors concerning computation of time, set forth in CCP 583.240, apply to this case.

“In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which any of the following conditions existed:

(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.

(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.”

CCP 583.240

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06(D). Counsel for moving party is directed to contact counsel for opposing party forthwith and advise counsel of Local Rule 1.06 and the Court’s tentative ruling procedure. If counsel for moving party is unable to contact counsel for opposing party prior to hearing, counsel for moving party shall be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 1.06(B).

The prevailing party shall prepare a formal order for the Court’s signature pursuant to C.R.C. 3.1312.