Opinion
F085429
04-11-2024
THOMAS EMMANUEL AKANDE et al., Plaintiffs and Appellants, v. STATE CENTER COMMUNITY COLLEGE DISTRICT et al., Defendants and Respondents.
Charles S. Roseman &Associates, Charles S. Roseman, Richard D. Prager; Law Offices of Frank M. Nunes, Frank M. Nunes; Williams Iagmin and Jon R. Williams for Plaintiffs and Appellants. Gordon Rees Scully Mansukhani, Alyson Cabrera, Ayushi Neogi, and Don Willenburg for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. 18CECG03683 Rosemary T. McGuire, Judge.
Charles S. Roseman &Associates, Charles S. Roseman, Richard D. Prager; Law Offices of Frank M. Nunes, Frank M. Nunes; Williams Iagmin and Jon R. Williams for Plaintiffs and Appellants.
Gordon Rees Scully Mansukhani, Alyson Cabrera, Ayushi Neogi, and Don Willenburg for Defendants and Respondents.
OPINION
DETJEN, J.
This is an appeal from a December 12, 2022 judgment of the Fresno County Superior Court granting the motion of defendants State Center Community College District and Fresno City College to dismiss plaintiffs' action pursuant to Code of Civil Procedure section 583.250, subdivision (a). For the reasons set forth below, we affirm the judgment.
Unless otherwise indicated, subsequent statutory citations refer to the Code of Civil Procedure.
BACKGROUND
Plaintiffs filed a civil complaint on October 3, 2018. They served each defendant a copy of the summons and complaint on January 6, 2022. Citing sections 583.210 and 583.250, defendants moved to dismiss the action on the grounds plaintiffs failed to serve the summons and complaint within three years after filing the complaint. In their opposition, plaintiffs asserted the doctrine of equitable tolling "soundly defeats Defendants' instant motion to dismiss." They specified they not only filed the complaint on October 3, 2018, but also "voluntarily elected to file claims with the Department of Fair Employment and Housing . . . to address Defendants' allegedly ongoing discriminatory and unlawful activities ...." (Italics omitted.) Plaintiffs cited McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88 (McDonald) as supporting authority, among others.
Plaintiffs are: Thomas Emmanuel Akande, Anahi Alfaro, Maria "Nikki" Cantos, Jasmine Castaneda, Taylor Chumley, Omar Estrada, Annadina Garcia, Gabriel Garcia, Diego Guzman, Bao Her, Ana Landeros, Helizabela Lee, Caitlyn Lindley, Alexis Lopez, Jorge Lopez-Pardo, Bailey Matney, Boliver Quezadas, Abdiel Rosales, Myra Rubio, Rina Saengkeo, Arianna Singh, Narinderpal Singh, Oleksandr Volyk, and Amy Zendejas.
Documents in the record suggest plaintiffs' counsel intended to serve defendants in mid-2021.
A hearing was held on October 18, 2022. Thereafter, the superior court granted defendants' dismissal motion. In its ruling, it explained:
"This action was commenced on October 3, 2018, when plaintiffs filed the Complaint. The summons and complaint would have needed to be served by October 3, 2021, or be subject to dismissal . . . unless plaintiffs show that the three-year period was tolled due to any of the conditions set forth in . . . section 583.240:
"• Defendant was not amenable to service; or
"• Prosecution of the action was stayed, and the stay affected service of summons; or
"• The validity of service was the subject of litigation between the parties; or
"• For any other reason, service was 'impossible, impracticable, or futile' due to causes beyond plaintiff's control (excluding failure to discover relevant evidence). [Citation.]
"In their opposition, plaintiffs argue that the time for service should be tolled because during much of the pendency of this action plaintiffs concurrently pursued an alternative remedy through the claims filed with the Department of Fair Housing and Employment, relying on McDonald .... McDonald applied the doctrine of equitable tolling in the context of a lawsuit that had been filed after the statute of limitations had run before the complaint was filed. However, plaintiff[s] cite[] to no authority applying this principle to dismissal for failure to serve a defendant within three years of filing a complaint.
". . . [S]ection 583.140 provides, 'Nothing in this chapter abrogates or otherwise affects the principles of waiver and estoppel.' Estoppel typically applies where the defendant has, by words or conduct, caused plaintiff reasonably to forgo efforts to serve defendant within the statutory period. [Citation.] Plaintiffs have not shown or argued that any estoppel or waiver doctrine applies here. McDonald did not discuss or apply an estoppel doctrine. Section 583.240 sets forth the circumstances in which the time for service may be tolled, but plaintiffs make no argument that any of these circumstances apply. Given the lack of any showing of waiver, estoppel, or tolling under section 583.240, the action must be dismissed for failure to serve defendants within three years of commencing the action."
DISCUSSION
I. Standard of review
" 'Questions of statutory interpretation, and the applicability of a statutory standard to undisputed facts, present questions of law, which we review de novo.' [Citation.] 'Because the interpretation and application of a statute are questions of law, an appellate court is not bound by the trial judge's interpretation.' [Citation.] Instead, 'we undertake our own interpretation of the determinative statute and assess any claims raised by the parties completely anew.' [Citation.]" (California State University, Fresno Assn., Inc. v County of Fresno (2017) 9 Cal.App.5th 250, 265-266 (Cal. State Fresno).)
" 'In ascertaining the meaning of a statute, we look to the intent of the Legislature as expressed by the actual words of the statute' [citation], 'giving them a plain and commonsense meaning' [citation]. 'We examine the language first, as it is the language of the statute itself that has "successfully braved the legislative gauntlet." [Citation.] "It is that [statutory] language which has been lobbied for, lobbied against, studied, proposed, drafted, restudied, redrafted, voted on in committee, amended, reamended, analyzed, reanalyzed, voted on by two houses of the Legislature, sent to a conference committee, and, after perhaps more lobbying, debate and analysis, finally signed 'into law' by the Governor. The same care and scrutiny does not befall the committee reports, caucus analyses, authors' statements, legislative counsel digests and other documents which make up a statute's 'legislative history.'" [Citation.]' [Citation.]" (Cal. State Fresno, supra, 9 Cal.App.5th at p. 266.)
" 'If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.' [Citation.] 'When statutory language is clear and unambiguous there is no need for construction, and we will not indulge in it.' [Citations.] 'We will not speculate that the Legislature meant something other than what it said. Nor will we rewrite a statute to posit an unexpressed intent.' [Citations.] 'The plain meaning of words in a statute may be disregarded only when that meaning is" 'repugnant to the general purview of the act,' or for some other compelling reason ...." [Citation.]' [Citation.]" (Cal. State Fresno, supra, 9 Cal.App.5th at p. 266.)
II. Analysis
"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." (§ 583.210, subd. (a).) "If service is not made in an action within the time prescribed in [section 583.210, subdivision (a)]: [¶] . . . [¶] . . . [t]he 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." (§ 583.250, subd. (a)(2).) "The three-year service requirement is 'mandatory' and is 'not subject to extension, excuse, or exception except as expressly provided by statute.'" (State ex rel. Edelweiss Fund, LLC v. JP Morgan Chase &Co. (2020) 58 Cal.App.5th 1113, 1120, quoting § 583.250, subd. (b).)
"The time within which service must be made pursuant to [section 583.210, subdivision (a)] does not apply if the defendant enters into a stipulation in writing or does another act that constitutes a general appearance in the action." (§ 583.220.) "The parties may extend the time within which service must be made pursuant to [section 583.210, subdivision (a)] by the following means: [¶] (a) By written stipulation. The stipulation need not be filed but, if it is not filed, the stipulation shall be brought to the attention of the court if relevant to a motion for dismissal. [¶] (b) By oral agreement made in open court, if entered in the minutes of the court or a transcript is made." (§ 583.230.) "In computing the time within which service must be made pursuant to [section 583.210, subdivision (a)], 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." (§ 583.240.) "Nothing in this chapter abrogates or otherwise affects the principles of waiver and estoppel." (§ 583.140; accord, Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1062; Biss v. Bohr (1995) 40 Cal.App.4th 1246, 1251.)
Sections 583.140 and 583.210 through 583.250 appear in Part 2, Title 8, Chapter 1.5 of the Code of Civil Procedure.
On appeal, plaintiffs do not dispute they served defendants more than three years after they filed their complaint. Instead, they invoke equitable tolling," 'a judge-made doctrine "which operates independently of the literal wording of the Code of Civil Procedure" to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.' [Citation.]" (Cal. State Fresno, supra, 9 Cal.App.5th at pp. 268-269.) However, "[t]he Legislature may preclude equitable tolling by stating its intention 'to disallow tolling under any circumstances not enumerated in the statute.' [Citations.]" (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 371; see Cal. State Fresno, supra, 9 Cal.App.5th at p. 270 ["' "[E]quitable tolling is not permissible where it is inconsistent with the text of the relevant statute."' "].)
"[W]e presume the Legislature intended everything in a statutory scheme, and we should not read statutes to omit expressed language or include omitted language." (Jurcoane v. Superior Court (2001) 93 Cal.App.4th 886, 894, italics added.) "It is a settled rule of statutory construction that 'where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed.' [Citation.]" (Quarry v. Doe I (2012) 53 Cal.4th 945, 970; accord, People v. Fernandez (2017) 11 Cal.App.5th 926, 936.) Section 583.250, subdivision (b) states the three-year service requirement is "mandatory" and "not subject to extension, excuse, or exception except as expressly provided by statute." (Italics added; see Laird v. Blacker (1992) 2 Cal.4th 606, 618 ["[Former s]ection 340.6, subdivision (a) states that 'in no event' shall the prescriptive period be tolled except under those circumstances specified in the statute. Thus, the Legislature expressly intended to disallow tolling under any circumstances not enumerated in the statute."].) These permissible extensions, excuses, and exceptions are set forth in sections 583.140 and 583.220 through 583.240 and do not include equitable tolling. Hence, plaintiffs' reliance on equitable estoppel is improper.
Plaintiffs offer several counterarguments. First, they point to section 583.140, which mentions "the principles of waiver and estoppel," and contend "it makes little sense to distinguish between the application of equitable theories which all have the practical effect of extending the time limits contained in section 583.210." We disagree. Waiver "consists of the voluntary relinquishment of a known right" (Isaacson v. City of Oakland (1968) 263 Cal.App.2d 414, 419), such as the" 'right to rely on [a] limitations provision'" (Ashou v. Liberty Mutual Fire Ins. Co. (2006) 138 Cal.App.4th 748, 757). "Estoppel may be invoked if a party . . . has induced its adversary . . . to forbear from doing a particular act and the adversary relies upon that inducement to its prejudice." (Cerritos Valley Bank v. Stirling (2000) 81 Cal.App.4th 1108, 1117.) "Equitable tolling is distinct from both of these doctrines. Its application does not depend on [a defendant's] express waiver or inducement of reliance ...." (Ashou v. Liberty Mutual Fire Ins. Co., supra, at pp. 757-758.) Moreover, "[u]nder the interpretive canon expressio unius est exclusio alterius, 'the explicit mention of some things in a text may imply other matters not similarly addressed are excluded.' [Citation.]" (Barron v. Superior Court (2023) 90 Cal.App.5th 628, 638.) Here, an inference is warranted in view of (1) section 583.140, which explicitly omits any reference to equitable tolling; and (2) sections 583.140 and 583.220 through 583.240, which enumerate specific bases for tolling and leave out equitable tolling. Had the Legislature meant for equitable tolling to apply, it would have indicated so.
Second, plaintiffs cite Davis v. Allstate Ins. Co. (1989) 217 Cal.App.3d 1229 (Davis) for the proposition section 583.210's language "is not sacrosanct" and the courts must not "elevate 'form over substance' in construing and applying the literal text of statutes." In Davis, the plaintiff filed suit on February 28, 1985, and subsequently filed three amended complaints on March 6, 1985; March 12, 1985; and August 13, 1987, respectively. (Davis, at p. 1231.) On February 24, 1988, a few days before section 583.210's three-year service requirement expired, the plaintiff served the defendant a copy of the summons and the second amended complaint. (Davis, at p. 1231.) On or around April 6, 1988, the plaintiff served the defendant a copy of the operative third amended complaint. (Ibid.) The defendant moved to quash service of summons and complaint and to dismiss the action, pointing out the plaintiff did not timely serve the third amended complaint per section 583.210. (Davis, at p. 1231.) The superior court agreed and granted the motion. (Ibid.) The Sixth Appellate District reversed the order, finding service of the "second, albeit superseded amended complaint" provided the defendant "with timely notice of the action and of substantially all of the plaintiff's factual contentions against it" because the allegations in the second amended complaint were "essentially similar" to those in the operative third amended complaint. (Id. at p. 1234.) In other words, "timely service of summons and complaint is not invalid because of defects in form which do not frustrate the statutory purpose." (Id. at p. 1233.) By contrast, in the instant case, there was no compliance-let alone substantial compliance-with section 583.210, subdivision (a): plaintiffs did not serve defendants anything prior to the expiration of the three-year period. Thus, Davis is inapposite.
Plaintiffs cite other cases that are similarly inapposite. (See Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 245-246, 256 [summons and complaint served by mail on the out-of-state defendant within three years of commencement of action]; Gillette v. Burbank Community Hosp. (1976) 56 Cal.App.3d 430, 432-434 [original summons instead of amended summons served within three years of commencement of action]; Hershenson v. Hershenson (1962) 205 Cal.App.2d 382, 382-385 ["duly issued" summons purportedly lacked case number, assigned court department, date of issuance, and name of issuing deputy clerk].)
Next, as they maintained below, plaintiffs believe McDonald is "particularly instructive." In that case, the California Supreme Court held an employee's claim under the California Fair Employment and Housing Act was subject to equitable tolling where she voluntarily pursued an internal administrative remedy prior to filing the complaint. (McDonald, supra, 45 Cal.4th at p. 96.) The high court examined former section 12960, subdivision (d) of the Government Code, then "the governing statute of limitations for this administrative process ...." (McDonald, at p. 106.) It read in part: "No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred, except that this period may be extended as follows ...." (Gov. Code, former § 12960, subd. (d); accord, McDonald, supra, at pp. 106-107.) The high court concluded that provision did not "contain exclusivity language" "that courts have interpreted as confining tolling to specific listed bases." (McDonald, supra, at p. 107.) It suggested an intent to impose "an express limit on the bases for tolling" (ibid.) would have been shown had the statute stated-for instance-"' "in no event" shall the prescriptive period be tolled except under those circumstances specified in the statute'" (ibid.) or tolling is prohibited" 'for any reason except as provided' therein" (ibid.). Here, the pertinent provision is section 583.250, subdivision (b). As mentioned, it states the three-year service requirement is "mandatory" and "not subject to extension, excuse, or exception except as expressly provided by statute." Given the presence of this "exclusivity language" (McDonald, supra, at p. 107), McDonald is inapposite.
Finally, to the extent plaintiffs insinuate they should be excused from their noncompliance because defendants had actual knowledge of their claims, none of the pertinent provisions "suggest that defendant[s'] mere knowledge . . . renders the time requirement[] inapplicable." (Bishop v. Silva (1991) 234 Cal.App.3d 1317, 1323.)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendants and respondents State Center Community College District and Fresno City College.
WE CONCUR: POOCHIGIAN, Acting P. J. SMITH, J.