Opinion
A112293
4-30-2007
STEVE AKOPYAN, Plaintiff and Appellant, v. M & A TRAILER REPAIR, INC., et al., Defendants and Appellants.
NOT TO BE PUBLISHED
Plaintiff Steve Akopyan was injured in an accident that occurred while he was driving a truck for hire. He brought suit against the owner of the truck for breach of contract and personal injury. Nearly three years after the original complaint was filed, plaintiff served M & A Trailer Repair, Inc., M & A Trailer Repair, a General Partnership, and Martin Sandoval, dba M & A Trailer Repair (collectively, "M & A") with amendments to the complaint naming them in place of three Doe defendants. We affirm the trial court order quashing service and dismissing the action against M & A on the grounds of inexcusable delay. (See Code of Civil Procedure, § 583.110 et seq.)
Further statutory references are to the Code of Civil Procedure. References to rules are to the California Rules of Court.
BACKGROUND
Plaintiff was injured on April 2, 2001, when a trailer truck owned by Bear Trucking, Inc. rolled over as he was driving it. On April 2, 2002, plaintiff filed a complaint in the Los Angeles County Superior Court naming Bear Trucking, Trailmobile and Does 1 to 100 as defendants. The complaint alleged that defendants had negligently maintained the trailer truck and had failed to warn plaintiff of a dangerous condition that caused him to lose control. It also alleged that Bear Trucking had breached its contract with plaintiff by refusing to pay him for his services as a driver.
On October 22, 2002, the case was transferred to the Mendocino County Superior Court, which has jurisdiction over the geographic area where the accident occurred. The case was dismissed after plaintiff failed to pay all necessary transfer fees, but the dismissal was vacated and the action reinstated on April 11, 2003.
On November 15, 2002, in response to a request for production of documents, Bear Trucking provided plaintiff with records showing that M & A had worked on the trailer truck a few months before the accident. In an August 22, 2003, response to a supplemental request, Bear Trucking provided invoices showing that work had been performed by M & A on at least three occasions prior to the accident and that this work included welding, brake work and the installation of wheel studs. A December 6, 2003, response to a second supplemental request included checklists for inspections that M & A performed on the trailer truck on December 6, 2000, and March 1, 2001. Interrogatory responses filed by Bear Trucking on December 9, 2003, provided additional information regarding the inspections by M & A and the employees who performed them.
On March 29, 2005, plaintiff served the three M & A defendants with amendments to the complaint. On May 6, 2005, M & A filed a motion to quash service and dismiss the action, arguing that the complaint had not been properly amended to name them as Doe defendants before the date of service, and that plaintiff had failed to diligently prosecute the action. The trial court granted the motion.
DISCUSSION
Plaintiff argues the dismissal order must be reversed because his delay in naming and serving M & A was excusable and because the trial court failed to consider relevant factors enumerated in the California Rules of Court when it ruled on M & As motion. We disagree.
The opening brief couches the issue as whether, when he named them as Does, plaintiff was actually ignorant of defendants identities under section 474 ["When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint . . . and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended . . ."], and whether the amendment naming the defendants "relates back" to the filing of the original complaint for statute of limitations purposes. The reply brief recognizes that the dismissal was based on a delay in prosecution, rather than noncompliance with section 474.
Section 583.420, subdivision (a)(1), permits the discretionary dismissal of a civil action for delay in its prosecution when "[s]ervice is not made within two years after the action is commenced against the defendant." Section 583.420, subdivision (a)(2)(A), permits dismissal when the action is not brought to trial "[t]hree years after the action is commenced against the defendant." Section 583.150 allows the court to exercise its "inherent authority" to dismiss a case as a sanction when the plaintiff has failed to diligently prosecute an action (Pearlson v. Does 1 to 646 (1999) 76 Cal.App.4th 1005, 1010), although it should not do so unless there has been a minimum delay of two years (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915-916).
These provisions apply to parties who are originally named as Doe defendants and are brought into the action after the minimum periods allowing discretionary dismissal have expired. (Clark v. Stabond Corp. (1987) 197 Cal.App.3d 50, 55-57.) In this case, plaintiff served the M & A defendants with the purported Doe amendments on a date that was just short of three years after the complaint was filed. He also failed to bring them to trial within three years of the commencement of the action.
A plaintiff who has not served the complaint within the two-year period or brought the case to trial within three years is required to show excusable delay. (Terzian v. County of Ventura (1994) 24 Cal.App.4th 78, 83; Freedman v. Pacific Gas & Electric Co. (1987) 196 Cal.App.3d 696, 703, superseded by statute on other grounds as stated in Tustin Plaza Partnership v. Wehage (1994) 27 Cal.App.4th 1557, 1564.) On appeal, we will not reverse an order dismissing an action for delay in prosecution absent a manifest abuse of discretion. (Clark v. Stabond, supra, 197 Cal.App.3d at p. 55.)
In ruling on a motion to dismiss based on unreasonable delay, the court must consider the following matters listed under former rule 373(e) [now renumbered rule 3.1342(e)]: "(1) The courts file in the case and the declarations and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process; [¶] (2) The diligence in seeking to effect service of process; [¶] (3) The extent to which the parties engaged in any settlement negotiations or discussions; [¶] (4) The diligence of the parties in pursing discovery or other pretrial proceedings, including any extraordinary relief sought by either party; [¶] (5) The nature and complexity of the case; [¶] (6) The law applicable to the case, including the pendency of other litigation under a common set of facts or determinate of the legal or factual issues in the case; [¶] (7) The nature of any extensions of time or other delay attributable to either party; [¶] (8) The condition of the courts calendar and the availability of an earlier trial date if the matter was ready for trial; [¶] (9) Whether the interests of justice are best served by dismissal or trial of the case; and [¶] (10) Any other fact or circumstance relevant to a fair determination of the issue." (See Terzian v. County of Ventura, supra, 24 Cal.App.4th at p. 82.) "The competing considerations to be evaluated are the policies of discouraging stale claims and compelling reasonable diligence balanced against the strong public policy which seeks to dispose of litigation on the merits rather than on procedural grounds." (Id. at p. 82.)
Plaintiff argues that the order dismissing the action against M & A must be reversed because the trial court failed to consider the factors in former rule 373(e). We disagree. Absent an indication to the contrary, we presume the trial court was aware of and followed the applicable law. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.) While its order of dismissal does not cite former rule 373, the trial court noted several factors falling within that rules provisions: (1) more than two years before the M & A defendants were named as Does, plaintiff had received discovery indicating that they had repaired the trailer involved in the accident, (2) plaintiffs had offered no reason for the delay, and (3) defendants would suffer prejudice if joined at this late date. Plaintiff has not carried his burden of establishing that the trial court applied an erroneous standard when it rule on the motion to quash service and dismiss the complaint.
Nor do we agree that the trial court otherwise abused its discretion in dismissing the case. Plaintiff knew by November 2002 that M & A had repaired the trailer truck, and it knew the extent of this work by December 2003. Yet it was not until March 2005 that plaintiff attempted to bring the M & A defendants into the case. Plaintiff stated in his opposition to the motion to dismiss that the delay was attributable to Bear Truckings failure to provide timely discovery, but this does not explain the lapse of time between the discovery responses and the Doe amendments. Plaintiff also stated in the opposition that he could not serve M & A until he had consulted with expert witnesses, but again, he offers no explanation for the delay in obtaining an opinion.
We take judicial notice of the discovery documents and motions to compel that were submitted by plaintiff in the motion to augment the record filed September 11, 2006.
Plaintiff argues that the court should not have dismissed the action against M & A when there was no showing of prejudice. ~(ARB p. 30)~ "[W]here there has been a protracted and unexplained delay in prosecution, the defendant need not make an affirmative showing of prejudice. Prejudice is inferred from the delay itself. [Citation.] Appellate review is limited to the question of whether the trial court abused its discretion in dismissing. [Citations.] `The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citations.] [Citation.]" (Wagner v. Rios (1992) 4 Cal.App.4th 608, 612.) Here, the trial court did not exceed the bounds of reason when it determined that based on the record before it, the delay in naming M & A as a defendant had not been adequately explained and warranted dismissal.
DISPOSITION
The judgment (order dismissing action against M & A Repair, Inc., M & A Trailer Repair, a General Partnership, and Martin Sandoval, dba M & A Trailer Repair) is affirmed. Costs on appeal are awarded to defendants/respondents.
We Concur:
PARRILLI, J.
SIGGINS, J.