Opinion
D069840
11-27-2017
ON SEACOAST HOMEOWNERS ASSOCIATION, Plaintiff and Appellant, v. PACIFIC GREEN LANDSCAPE, Defendant and Respondent.
Norman Shaw & Associates, Chris Ford and Norman Shaw for Plaintiff and Appellant. Diederich & Associates and Donna E. Moore for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2012-00090108-CU-CD-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Ronald L. Styn, Judge. Affirmed. Norman Shaw & Associates, Chris Ford and Norman Shaw for Plaintiff and Appellant. Diederich & Associates and Donna E. Moore for Defendant and Respondent.
Subject to a few limited exceptions, Code of Civil Procedure section 583.210, subdivision (a) mandates that a plaintiff serve a defendant, fictitious or not, within three years of initiating an action against it. On Seacoast Homeowners Association (Seacoast) served Pacific Green Landscape (Pacific Green), formerly known as Doe 11, three and a half years after this action was initiated. Because Seacoast failed to timely serve Pacific Green, we affirm the judgment of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
On January 3, 2012, Seacoast filed a construction defect lawsuit against several named entities and fifty Doe defendants. Roughly six months later, it filed a First Amended Complaint (FAC). The FAC did not assert any new causes of action or substantively change the complaint's operative facts.
In late 2012, Seacoast and the other named parties submitted a case management order (CMO) to the trial court for its approval. The CMO was entered in February 2013 and specified: "Plaintiff(s) may amend the Complaint and/or add additional defendants (or name Does) by the date(s) set forth in the CMO timeline, without leave of court. [¶] . . . [¶] Thereafter, parties must seek leave of court to amend pleadings or add parties for good cause shown." The CMO timeline provided a April 15, 2013 deadline for adding defendants. In March 2015, a revised CMO timeline was issued, amending the deadline to add defendants by extending it to May 15, 2015.
On October 26, 2017, Seacoast moved to augment the record to include, or alternatively for the court to take judicial notice of, several documents filed in the trial court. Pacific Green did not oppose Seacoast's motion. With the exception of Exhibit A to the motion, Seacoast's motion to augment is granted. (See Cal. Rules of Court, rule 8.155(a)(1)(A).) Exhibit A purported to be a copy of the February 21, 2013 CMO but instead was a printout of the online Register of Actions (ROA) with the ROA number for the CMO circled. Because the document appended as Exhibit A was not part of the trial court's file, the motion is denied as to Exhibit A. However, on our own motion we will augment the record to include the February 21, 2013 CMO, as well as the May 27, 2014 order revising the CMO timeline. (Ibid.)
The CMO timeline was also amended in May 2014, to provide an (already expired) April 15, 2014 deadline to add defendants.
In late April 2015, Seacoast amended its complaint to substitute Pacific Green as Doe 11. Again, the amendment did not add any different causes of action or operative facts. Over two months later in early July, more than three and a half years after the initial complaint was filed, Seacoast served Pacific Green. Pacific Green answered and, relying on Code of Civil Procedure section 583.210, moved to dismiss the FAC on the ground that it was not timely served within three years from the date the initial complaint was filed. Seacoast opposed the motion, arguing that the window for service commenced when Pacific Green was added by amendment and, in any event, the window for service was tolled because Seacoast was previously ignorant of Pacific Green's alleged involvement.
After initially hearing oral argument on the motion, the court requested supplemental briefing regarding whether the CMO could trump the statutory service deadlines. It then granted the motion to dismiss, reasoning that Pacific Green was not timely served and nothing excused Seacoast's tardiness. More specifically, the court concluded that (1) the three-year window to serve Pacific Green commenced when the initial complaint was filed in January 2012; (2) the CMO did not override the mandatory service deadline; and (3) no exception tolled the service window, which ended in January 2015, six months before Pacific Green was served in July 2015. The court also found that Seacoast failed to establish that it was ignorant of Pacific Green's identity when the action was filed. This appeal followed.
The parties dedicate much of their briefing to discussion of when exactly Seacoast discovered Pacific Green's alleged involvement. As discussed herein, that factual issue is irrelevant to this decision. So, we leave the finding unreviewed and undisturbed.
DISCUSSION
1. Code of Civil Procedure Section 583.210
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
The sole issue on appeal is whether Pacific Green was timely served. Section 583.210 provides that a plaintiff must serve "a defendant within three years after the action is commenced against the defendant." (§ 583.210, subd. (a).) Dismissal is mandatory where a plaintiff fails to serve a defendant within the statutory time limits. (§ 583.250 ["If service is not made in an action within the time prescribed in this article . . . [¶] [t]he action shall be dismissed[¶] . . . [¶] The requirements of this article are mandatory."].) We review the interpretation of the statutory service requirements de novo. (See Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724 (Bruns) [considering failure to bring to trial].)
The statutory time limits for service apply equally to fictitious (or Doe) defendants. (See Higgins v. Superior Court (2017) 15 Cal.App.5th 973, 982 (Higgins); Lesko v. Superior Court (1982) 127 Cal.App.3d 476, 481-482 (Lesko); Lopa v. Superior Court (1975) 46 Cal.App.3d 382, 387 (Lopa).) Put simply, in light of section 583.210, a plaintiff has three years to identify and serve Doe defendants. (Higgins, supra, at p. 982.)
An exception arises where the amendment charging the Doe defendant by its true name "allege[s] a new cause of action based on different operative facts." (Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 154 (Barrington).) In such cases, the complaint—in light of its new subject matter—does not relate back to the original filing, and thus the period for service, just as for the statute of limitations, begins to run on the date of the amendment. (Ibid.) However, "when a complaint is amended only to identify a party by its proper name, the gravamen of the complaint remains unaltered, and hence the later pleading relates back to the earlier pleading," which then dictates when the period for service commenced. (Ibid.)
Here, Pacific Green was substituted for Doe 11 by amendment in late April 2015. The amendment did not add any new causes of action or allege any different operative facts. Thus, the amendment related back to the date the complaint was initially filed on January 3, 2012, and, barring any applicable exceptions, Seacoast had until January 3, 2015 (three years later) to serve Pacific Green. (See Barrington, supra, 39 Cal.3d at p. 154.)
Seacoast argues that, despite Pacific Green's addition as a Doe defendant, it was nonetheless a "new party" to the action in April 2015 because Pacific Green's alleged involvement was "entirely unknown to [Seacoast] at the time [it] filed suit." However, at an action's inception, all "Does" are to some extent uncertain. (See § 474; see also Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1143 [noting that, to name fictitious defendants, "the plaintiff must actually be ignorant of the Doe defendant's name, i.e., 'ignorant of the facts giving rise to a cause of action against that defendant' "].) Seacoast's ignorance of Pacific Green is not a distinguishing factor rendering Pacific Green a "new party" to the action, but simply a symptom of Pacific Green's prior status as a "Doe." To hold otherwise would be akin to rendering all fictitious defendants "new parties" upon revelation of their true identities, and thus contrary to established jurisprudence providing that the period for service of fictitious defendants commences on the date the complaint was filed. (See, e.g., Lopa, supra, 46 Cal.App.3d at p. 387.) 2. Tolling under Section 583 .240
The service requirements prescribed by section 583.210 "are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute." (§ 583.250, subd. (b), italics added.) The Legislature has delineated four "conditions" that toll the time for service. (§ 583.240.) The conditions "must be construed strictly against the plaintiff." (Shipley v. Sugita (1996) 50 Cal.App.4th 320, 326 (Shipley).)
On appeal, Seacoast raises only one of section 583.240's enumerated conditions: Subdivision (d) provides for tolling when service "was impossible, impracticable, or futile due to causes beyond the plaintiff's control." (§ 583.240, subd. (d).) We review the trial court's finding on this issue for an abuse of discretion. (See Bruns, supra, 51 Cal.4th at pp. 731-732 [considering failure to bring to trial].)
At the trial court level, Seacoast also argued that the service period was tolled by subdivision (a) of section 583.240, applicable when "the defendant was not amenable to the process of the court." The trial court rejected that argument, and Seacoast does not reassert it on appeal.
Seacoast argues that its ignorance of Pacific Green's identity rendered service "impossible" during the three-year window. But the Legislature has made clear that, under section 583.240, subdivision (d), "[f]ailure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision." Failure to discover relevant facts includes the failure to uncover the true identity of a Doe defendant. (See Higgins, supra, 15 Cal.App.5th at p. 982; Republic Corp. v. Superior Court (1984) 160 Cal.App.3d 1253, 1258.) As such, Seacoast's alleged ignorance of Pacific Green is no excuse.
Seacoast additionally argues that service was "impossible, impracticable or futile because of a court order," apparently referring to the April 15, 2013 deadline for adding defendants provided for by the February 2013 CMO. According to Seacoast, it could not add (and therefore could not serve) any additional defendants until the deadline was extended by court order in March 2015. However, to toll the period for service, the impossibility, impracticability, or futility of service must be "due to causes beyond [Seacoast's] control." (§ 583.240, subd. (d).) The initial CMO timeline was submitted to the trial court by Seacoast, purporting to reflect the parties' agreed-upon schedule for the action. Thus, the April 15, 2013 deadline itself was not a cause outside of Seacoast's control. (Ibid.; cf. Highland Stucco & Lime, Inc. v. Superior Court (1990) 222 Cal.App.3d 637, 644-645 [applying section 583.240, subdivision (d) where a court order explicitly "precluded service" during a specific time period].) Similarly, nothing appears to have prohibited Seacoast from seeking modification of the CMO to the extent it believed that was necessary. And more importantly, the CMO provided a specific mechanism to add defendants after the deadline passed—i.e., by seeking leave of court. That is, by the plain terms of the CMO, it was not impossible for Seacoast to add Pacific Green after the deadline passed.
3. Non-Statutory Exceptions
In addition to its attempted reliance on section 583.240, subdivision (d), Seacoast makes two arguments untethered to the statutory framework for service deadlines. It first argues that the CMO trumped the mandatory service deadline. It also contends that the timeline for service is subject not only to the exceptions delineated in section 583.240, but also to "implied" exceptions. Neither argument is persuasive.
In arguing that the CMO overrode the statutory deadline for service, Seacoast relies on the following provision: "Plaintiff(s) may amend the Complaint and/or add additional defendants (or name Does) by the date(s) set forth in the CMO timeline, without leave of court." In March 2015, the CMO timeline was revised to provide a May 15, 2015 deadline for adding defendants. Thus, Seacoast urges that, in accord with the permissive language in the CMO, it had until May 15, 2015 to add Doe defendants and could serve them subsequently, regardless of any statutory limitation.
As a threshold matter, the language of the CMO only speaks to Seacoast's ability to amend its complaint and add parties without leave of court. It says nothing about the bases—like a failure to timely serve—on which Pacific Green could successfully move to dismiss.
But even if the CMO clearly and unambiguously purported to extend the statutory service deadline, the attempted extension came too late. Seacoast relies on a CMO amendment filed in late March 2015, nearly three months after the service deadline passed in early January. On this point, the trial court stated, "[Seacoast] fails to provide any authority allowing the parties to waive the [three] year mandatory dismissal after the three years has run." This failure remains unaddressed in this court.
While limited authority provides that a late-filed stipulation may extend the deadline for service, that exception has no bearing here. (§§ 583.220-583.230; Big Bear Municipal Water Dist. v. Superior Court for San Bernardino County (1969) 269 Cal.App.2d 919, 923.) --------
And even assuming the CMO purported to extend a deadline that had not yet expired, it could not trump the Legislature's mandate. (See § 583.250, subd. (b).) Seacoast argues that the power to override the statutory mandate falls within the court's inherent power. However, our judicial powers do not reach so far as to overturn the Legislature's explicit prohibition. "If the Legislature wishes to extend the circumstances under which mandatory dismissal may be avoided, it may do so. To date, it has not." (Shipley, supra, 50 Cal.App.4th at p. 328.)
Seacoast's argument regarding "implied" exceptions fares no better. Most pertinently, the plain language of section 583.250, subdivision (b), precludes this argument: The exceptions are limited to those "expressly provided by statute." (See Dale v. ITT Life Ins. Corp. (1989) 207 Cal.App.3d 495, 498.) The jurisprudence Seacoast relies upon for the existence of " 'implied exceptions' " (e.g., Lesko, supra, 127 Cal.App.3d at pp. 484-485) predates the 1984 amendment to the service time requirements, which codified and fixed the exceptions to those previously recognized in the case law. (See Barrington, supra, 39 Cal.3d at p. 155 & fn. 4; Shipley, supra, 50 Cal.App.4th at p. 327.) Moreover, Seacoast's "implied" exception—"when the plaintiff initially did not know the identity of the defendant who was served after the expiration of the three-year time limit"—runs contrary to the tolling limitations embedded in section 583.240. Section 583.240, subdivision (d) specifically provides that the "[f]ailure to discover relevant facts" does not establish the "impossibility" required for tolling. Because the "[f]ailure to discover relevant facts" includes the failure to uncover a fictitious defendant's true identity, Seacoast's "implied" exception would effectively circumvent the Legislature's expressed intent.
The statutory framework here is quite simple. After filing its complaint on January 3, 2012, Seacoast had three years (until January 3, 2015) to serve Doe 11, now known as Pacific Green. It failed to do so. As such, Pacific Green's motion to dismiss was properly granted.
DISPOSITION
The judgment is affirmed. Pacific Green shall recover costs on appeal.
DATO, J. WE CONCUR: NARES, Acting P. J. O'ROURKE, J.