Opinion
C081129
08-24-2018
SYKOHN SAYABATH et al., Plaintiffs and Appellants, v. SAND CANYON CORPORATION et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 34200900066011CUORGDS)
Sykohn and Veronica Sayabath appeal following the dismissal of their suit for failure to bring it to trial within five years. (Code Civ. Proc., § 583.310.) They contend that because they did not name Sand Canyon Corporation as a defendant until they filed their first amended complaint, the five-year period continues to run as to Sand Canyon. Defendants counter that the Sayabath's appellate contention lacks merit because the original complaint named Sand Canyon as a defendant under its former name, Option One Mortgage Corporation. We will affirm the judgment.
Undesignated statutory references are to the Code of Civil Procedure. --------
BACKGROUND
The Sayabaths originally filed this lawsuit on December 7, 2009. The complaint asserted several causes of action against multiple defendants including Option One Mortgage Corporation and H&R Block Mortgage Inc.
Over a year later, "Sand Canyon Corporation [formerly known as] Option One Mortgage Corporation and [formerly known as] H&R Block Mortgage, Inc." filed a demurrer to the complaint. The Sayabaths filed a first amended complaint against "H&R Block Mortgage Inc.; Sand Canyon Corporation, [formerly known as] Option [One] Mortgage Corporation" and several Doe defendants. The first amended complaint asserted that Sand Canyon had acquired the assets of Option One. Two weeks later, the Sayabaths filed a second amended complaint against "H&R Block Mortgage Inc.; Sand Canyon Corporation, [formerly known as] Option [One] Mortgage Corporation" and several Doe defendants. Defendants filed a demurrer to the second amended complaint, which the trial court sustained in part, and defendants subsequently answered the second amended complaint on June 11, 2012.
Three years later, on July 20, 2015, defendants moved to dismiss the action for failure to bring it to trial within five years from the filing of the original complaint. (§ 583.310.) The motion included a declaration by Sand Canyon's president stating that in April 2008, Option One changed its name to Sand Canyon Corporation. The declaration also stated that "H&R Block Mortgage Corporation" is now "Ada Services." Defendants identified themselves as "Sand Canyon Corporation [formerly known as] Option One Mortgage Corporation; and Ada Services Corporation [formerly known as] H&R Block Mortgage Corporation (and previously responded herein as 'Sand Canyon Corporation [formerly known as] H&R Block Mortgage Corporation')."
The Sayabaths opposed the motion to dismiss, arguing among other things that Sand Canyon was not named as a defendant in the initial complaint but was added in the first amended complaint filed on October 18, 2011, and thus the five-year period for Sand Canyon began on that date.
The trial court granted the motion to dismiss, explaining that Option One, which was named in the original complaint, became known as Sand Canyon before the original complaint was filed. That the Sayabaths used the name Option One rather than Sand Canyon did not change the fact that they were proceeding against Sand Canyon at all relevant times. The trial court cited Gray v. Firthe (1987) 194 Cal.App.3d 202, 209, referencing the following quote: "As to a defendant either expressly named in the original complaint, or named in the original complaint by a fictitious name, the action commences on the date of the filing of the complaint."
DISCUSSION
The Sayabaths now reiterate the argument they made in the trial court, that because they did not name Sand Canyon Corporation as a defendant until they filed their first amended complaint, the five-year period continues to run as to Sand Canyon. They argue the trial court erred in concluding Sand Canyon had been fictitiously named; they claim Sand Canyon was a new defendant and was not previously named, fictitiously or expressly, in the original complaint.
"An action must be brought to trial within five years after it is commenced. (§ 583.310.) If this deadline is not met, the action 'shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties . . . .' " (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1089-1090; see also § 583.360, subd. (a).) " 'In reviewing the lower court's dismissal of [an] action for failure to prosecute, the burden is on appellant to establish an abuse of discretion. [Citation.] We will not substitute our opinion for that of the trial court unless a clear case of abuse is shown and unless there is a miscarriage of justice. [Citation.]' " (Sagi Plumbing v. Chartered Construction Corp. (2004) 123 Cal.App.4th 443, 447.)
Here, the suit was properly dismissed. In the original complaint, the Sayabaths erroneously referred to Sand Canyon by its old name, Option One. They corrected that error in the first amended complaint. But the correction did not restart the five-year clock as to Sand Canyon. (See Hawkins v. Pacific Coast Building Products, Inc. (2004) 124 Cal.App.4th 1497, 1503 ["where an amendment does not add a 'new' defendant, but simply corrects a misnomer by which an 'old' defendant was sued, case law recognizes an exception to the general rule of no relation back"].)
We disagree with the Sayabath's suggestion that the trial court concluded Sand Canyon was fictitiously named. The trial court never made such a determination regarding Sand Canyon, it merely included a parenthetical quote from a cited case. In any event, the record is clear that the Sayabaths referred to Sand Canyon by its old name, Option One, in the original complaint, and thus had been proceeding against Sand Canyon from the inception of the case. The trial court did not err in granting the motion to dismiss.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
MURRAY, J.