Opinion
NOT TO BE PUBLISHED
Superior Court County No. CV080109 of San Luis Obispo, Charles S. Crandall, Judge.
E. Patrick Morris, for Appellants.
Maria L. Hutkin; Hutkin Law Firm, for Respondent.
YEGAN, J.
Scott Cyr, Mesa Vista LTD, and Mid-Coast Capital appeal from the judgment dismissing their action against April McGovran, respondent. The dismissal was based on appellants' failure to serve respondent within three years after the action was commenced. (Code Civ. Proc., § 583.210, subd. (a).) Appellants contend that the trial court erroneously failed to exclude from the three-year statutory period the time during which (1) the proceedings were stayed, and (2) service was "impossible, impracticable or futile due to causes beyond [appellants'] control." (§ 583.240, subds. (b) & (d).) We affirm.
All statutory references are to the Code of Civil Procedure.
Background
On December 23, 2005, appellants filed in the Santa Barbara County Superior Court a complaint against respondent and four other defendants. The complaint alleged causes of action for breach of contract and negligence. On May 24, 2006, the court mistakenly dismissed the action. On the following day, May 25, 2006, appellants' counsel received notice that the action had been dismissed. On August 2, 2006, appellants amended the original complaint and refiled it under a different case number.
On November 30, 2006, appellants' counsel moved for "relief from the dismissal... to avoid any claims that his clients' claims may be barred by the statute of limitations."On December 6, 2006, the court granted the motion and reinstated the original action. At appellants' request, the refiled action was subsequently dismissed.
On July 13, 2007, three defendants moved to transfer the action to the San Luis Obispo County Superior Court on the ground that the action involved real property located in that county. On August 15, 2007, the Santa Barbara court granted the motion. It reasoned: "Defendants contracted to sell property in San Luis Obispo, and undoubtedly payment was due there. Since it is undisputed that no defendant lives in Santa Barbara, venue cannot be had in Santa Barbara."
Records of the San Luis Obispo County Superior Court (hereafter the "trial court") show that on January 30, 2008, the required transfer fees of $320 were paid. On that same date, the trial court issued a notice of transferred action and set the matter for a case management conference.
On October 19, 2009, respondent was served by publication. The date of service was three years, nine months, and twenty-seven days after the filing of the original action on December 23, 2005. Respondent moved to dismiss the action on the ground that she not been served within three years after the commencement of the action.
During argument at the hearing on respondent's motion, the trial court noted that although appellants had received notice of the dismissal of the original action on May 25, 2006, they had waited six months until November 30, 2006, to move to vacate the dismissal. The court asked appellants' counsel why his clients had not immediately moved to vacate the dismissal pursuant to section 473, subdivision (b). Counsel replied that his clients "planned to file a fully amended complaint" after additional discovery. The court stated: "[W]asn't that a tactical decision. You could have done one [a 473(b) motion to vacate] and you did the other [refiled the action] which was your choice, wasn't it?" Counsel responded: "I do agree it's a tactical decision." "If it was a 473 motion, we could have gotten relief but we had other options available to us."
Relevant Statutes
Section 583.210, subdivision (a), provides: "The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant.... [A]n action is commenced at the time the complaint is filed." Section 583.240 provides in relevant part: "In computing the time within which service must be made..., there shall be excluded the time during which any of the following conditions existed: [¶]... [¶] (b) The prosecution of the action or proceedings in the action was stayed and the stay affected service. [¶]... [¶] (d) Service, for any other reason, was impossible, impracticable or futile due to causes beyond the plaintiff's control." Pursuant to section 583.250, an action must be dismissed if service is not made within the three-year statutory period.
Trial Court's Ruling
The trial court concluded that the statutory period was not tolled from the dismissal of the original action on May 24, 2005, until its reinstatement on December 6, 2006. The court reasoned: "On May 25, 2006, the day after the dismissal, [appellants] received notice from Santa Barbara Superior Court that the action had been dismissed. Once this notice was received, [appellants] regained control of the situation and further time should not be excluded from the three-year calculation. It was not something beyond [appellants'] control; to the contrary, they made tactical decisions about whether and when to file motions for relief from the dismissal." "The approximate six-month period between the dismissal and reinstatement of the action is not excludable under law because the delay was attributable to [appellants].... [I]f [appellants] had immediately sought [section] 473 relief, that period of time would have been tolled. However, [appellants] made a tactical decision to file a new case, and they waited until August 2, 2006 to do so. Of course, once the new action was filed, the 'legal impossibility' of serving [respondent] completely disappeared."
The trial court rejected appellants' contention that the five-month period "after the case was ordered transferred from Santa Barbara (August 22, 2007) until it was accepted by San Luis Obispo (January 30, 2008) should be excluded from the running" of the three-year statutory period. The trial court concluded that appellants are not entitled to such tolling of the statutory period because the San Luis Obispo court's delay in accepting the case was due to appellants' "ongoing failure to pay the transfer fees."
Standard of Review
We independently review whether "the prosecution of the action or proceedings in the action was stayed and the stay affected service." (§ 583.240, subd. (b).) This is a question of law based on undisputed facts. (See People v. Cromer (2001) 24 Cal.4th 889, 894 ["an appellate court reviews... determinations of law under a nondeferential standard, which is independent or de novo review"].) The determination of whether "[s]ervice, for any other reason, was impossible, impracticable or futile due to causes beyond the plaintiff's control" (§ 583.240, subd. (d)) is a matter within the trial court's discretion that will not be disturbed on appeal unless an abuse of discretion is shown. (See De Santiago v. D and G Plumbing, Inc. (2007) 155 Cal.App.4th 365, 371.) "Where a trial court has discretionary power to decide an issue, we are not authorized to substitute our judgment for that of the trial court. [Citation.] Reversible abuse exists only if there is no reasonable basis for the trial court's action, so that the trial court's decision exceeds the bounds of reason. [Citations.]" (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1271.)
Discussion
I
Appellants contend that the period from the dismissal of the original action on May 24, 2006, until the reinstatement of the action on December 6, 2006 -- six months and thirteen days -- must be excluded from the three-year statutory period. Based on Graf v. Gaslight (1990) 225 Cal.App.3d 291, we disagree.
In Graf the action was filed on January 17, 1986. The trial court mistakenly dismissed the action on July 13, 1988, and mailed notice to plaintiff's counsel. On January 9, 1989, plaintiff moved to vacate the dismissal pursuant to section 473. Sixteen days later, on January 25, 1989, the motion was granted. The defendants moved to dismiss the action because they had not been served within three years after the filing of the action. The motion was granted, and plaintiff appealed.
The appellate court rejected plaintiff's contention that "the six-month period during which the action was dismissed tolled the three-year period for service of process...." (Graf v. Gaslight, supra, 225 Cal.App.3d at p. 296.) The appellate court excluded from the three-year period only the time between plaintiff's motion to vacate the dismissal and the granting of the motion: "We conclude it is reasonable in this case to toll the three-year statute of limitations for effecting service of process for the period of time between the date that [plaintiff] requested relief from the initial dismissal (Jan. 9, 1989) and the date on which the court granted relief by setting aside the dismissal (Jan. 25, 1989), a period of sixteen days, as being due to causes beyond [plaintiff's] control." (Id., at p. 298.) As to the period after the dismissal but before plaintiff's motion to vacate, the court concluded that it would have been futile and legally impossible to serve defendants during this period. But plaintiff had failed to show that the impossibility or futility was "due to causes beyond [his] control." (§ 583.240, subd. (d).) The court reasoned: "Had [plaintiff] acted more expeditiously in moving for relief after discovering the dismissal..., he could have effected service within the statutory period.... Accordingly, we conclude that [plaintiff] failed to use reasonable diligence in complying with statutory time limits, and we further conclude that [plaintiff's] contentions that the trial court abused its discretion are unmeritorious." (Graf v. Gaslight, supra, 225 Cal.App.3d at p. 298.)
Graf was disapproved on other grounds in Watts v. Crawford (1995) 10 Cal.4th 743, 758, fn. 13.)
Like the plaintiff in Graf, appellants also did not expeditiously seek relief after discovering the dismissal. Appellants admit that their counsel received notice of the dismissal on May 25, 2006, one day after it was entered. Appellants waited more than six months, until November 30, 2006, to file their motion to vacate the dismissal. Counsel acknowledged that his clients had made a "tactical decision" to file a new, "fully amended" complaint on August 2, 2006. Appellants have therefore failed to show that any impossibility, impracticability, or futility in serving respondent was "due to causes beyond [their] control." (§ 583.240, subd. (d).) Pursuant to Graf, the three-year statute is tolled only for the six-day period between the date that appellants filed their motion to vacate the dismissal (November 30, 2006) and the date that the motion was granted (December 6, 2006.) However, in view of the refiling of the action on August 2, 2006, the statute is not tolled even for this six-day period because the refiled complaint could have been served on respondent during this period.
II
Appellants contend that the trial court erroneously refused to exclude from the statutory three-year period the more than six months between the filing of the motion to transfer the action to the trial court (July 13, 2007) and the trial court's acceptance of the transfer (January 30, 2008). Appellants argue that, while the action was in " 'transfer limbo, ' " service on respondent could not have been effected.
Appellants maintain that the trial court abused its discretion in concluding that they are not entitled to such tolling of the statutory period because, by their ongoing failure to pay the transfer fees, they were responsible for the delay in the court's acceptance of the case. Section 399, subdivision (b), provides that, upon payment of the transfer fees, the "pleadings and papers" shall be transmitted "to the clerk of the court to which the [action] is transferred." Where, as here, the transfer is ordered because the action was commenced in the wrong court, the transfer fees "shall be paid by the plaintiff before the transfer is made." (Ibid.) "The cause of action shall not be further prosecuted in any court until [the transfer fees] are paid." (Ibid.)
Appellants assert that "the substantial evidence before the Court at the... hearing was that the [transfer] fees were timely paid." In support of this assertion, appellants refer us to pages 17 and 18 of the reporter's transcript of the hearing conducted on respondent's motion to dismiss. But the proceedings reported at these pages do not constitute substantial evidence that the transfer fees were timely paid. Appellants' counsel told the trial court that, "[t]o the best of [his] recollection, " the fees were timely paid. Counsel's unsworn statement is not evidence. (People v. Oppel (1990) 222 Cal.App.3d 1146, 1153 ["counsel's oral assertions during argument... were not made under oath, and thus... do not constitute evidence"].) Appellants presented no evidence on this issue, but the burden was on them to show that the transfer fees had been timely paid: "Once the statutory period for either service of process or commencement of trial has run, the action cannot be further prosecuted and must be dismissed. [Citations.] A plaintiff can escape this harsh consequence only by proving that grounds exist to toll the statutory period. [Citation.]" (Dale v. ITT Life Ins. Corp. (1989) 207 Cal.App.3d 495, 498.)
Respondent, on the other hand, presented evidence in the form of a "screen shot" from a San Luis Obispo County Superior Court computer showing that the transfer fees had not been paid until January 30, 2008. (AA 171, 176, 179, 205) Thus, even if counsel's unsworn statement were deemed to constitute evidence, the statement would have "merely raised a conflict in the evidence" that would have "presented a factual determination for the trier of fact." (Cvrcek v. State Personnel Bd. (1967) 247 Cal.App.2d 827, 832.)
Appellants, therefore, have failed to show that any impossibility, impracticability, or futility in serving respondent during the transfer period was "due to causes beyond [their] control." (§ 583.240, subd. (d); see Moore v. Powell (1977) 70 Cal.App.3d 583, 590 [since "it is plaintiff's responsibility to pay transfer fees when venue is changed on the ground that it was not commenced in a proper court[, ]... the delay occasioned by the failure to pay transfer fees in the instant case is attributable to plaintiff's inaction; the delay was avoidable by plaintiff and therefore the five-year period [for bringing the action to trial] was not tolled"].)
Furthermore, service on respondent during the transfer period was not impossible, impracticable, or futile. Until the transfer fees were paid, the Santa Barbara County Superior Court retained jurisdiction: "[L]anguage of section 399, providing that the fees must be paid 'before such transfer is made, ' leads us to conclude that, pursuant to this statute, jurisdiction has not been transferred... until payment of these fees.... To hold otherwise would empower a plaintiff to place his or her case in a state of jurisdictional limbo until he or she decides to pay the fees...." (Wheeler v. City of Santa Monica (1990) 219 Cal.App.3d 1554, 1562.) Thus, until the transfer fees were paid, respondent could have been served with a summons requiring her to file a written response in the Santa Barbara County Superior Court.
Pickwick Stages System v. Superior Court (1934) 138 Cal.App. 448, is of no assistance to appellants. In Pickwick the court concluded that a motion for a change of venue "operates as a supersedeas or stay of proceedings, and must be disposed of before any other steps can be taken." (Id., at p. 449.) The Pickwick court set aside an order overruling a demurrer because the order was made while a motion for a change of venue was pending. Pickwick is inapplicable here because a stay of the proceedings tolls the three-year statutory period only when "the stay affected service." (§ 583.240, subd. (b).) If the motion to transfer the action to San Luis Obispo County operated as a stay of the proceedings, the stay did not preclude service of process on respondent. (Cf. Highland Stucco & Lime, Inc. v. Superior Court (1990) 222 Cal.App.3d 637, 644 ["The court's stay of proceedings in the action clearly affected the service of process in that it [expressly] precluded service upon additional defendants until the stay was lifted"].)
Disposition
The judgment of dismissal is affirmed. Respondent shall recover her costs on appeal.
We concur: GILBERT, P.J., COFFEE, J.