Opinion
H043930
10-16-2018
ZEJIN DENG, Plaintiff and Appellant, v. EL CAMINO HOSPITAL et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. CV222887)
Plaintiff Zejin Deng challenges the trial court's decision to dismiss with prejudice his wrongful death action against defendants El Camino Hospital, J. Todd Engelhardt, and Aaron Gladman related to the death of plaintiff's sister, decedent Cuilan Deng. Her death allegedly resulted from her treatment at El Camino Hospital by doctors Engelhardt and Gladman. The action was abated in the trial court at defendants' request because plaintiff had not served two siblings who, as decedent's only other heirs, were necessary parties. Over a year after the action was abated (and four years after the action commenced) the trial court granted defendants' motions to dismiss, reasoning that plaintiff had failed to diligently prosecute the action because he had yet to effectuate service of the summons and complaint on one of the heirs. Finding no abuse of discretion in the trial court's decision, we will affirm the judgment of dismissal.
I. TRIAL COURT PROCEEDINGS
Plaintiff sued El Camino Hospital, J. Todd Engelhardt, Aaron Gladman, and others in 2012, alleging two causes of action for wrongful death. The complaint alleged that decedent received negligent care when she was admitted to the hospital on two successive days complaining of abdominal pain, and that the negligent care was the proximate cause of her death less than a week later. Demurrers to the complaint were sustained with leave to amend on the ground that plaintiff failed to allege he was decedent's only heir.
The other parties named in the complaint were later dismissed from the action at plaintiff's request. We refer to El Camino Hospital, J. Todd Engelhardt, and Aaron Gladman collectively as defendants.
In a first amended complaint, plaintiff alleged that decedent had neither a spouse nor children. Plaintiff alleged that he and decedent had one other sibling, a brother named Ze Qing Deng who "resides in China and is neither within the Court's jurisdiction, nor are his whereabouts known." Defendants demurred to the first amended complaint, arguing that Ze Qing Deng must be joined as a necessary party. The trial court sustained the demurrer with leave to amend, reasoning that " ' "[b]ecause there is only a single action for wrongful death, an heir bringing the action should join all known heirs." ' " (Quoting Adams v. Superior Court (2011) 196 Cal.App.4th 71, 77.)
Plaintiff filed the operative second amended complaint in January 2013, naming Ze Qing Deng as a defendant. Discovery commenced, which included a deposition of plaintiff during which he admitted that he and decedent had another sibling, a sister named Cuilian Deng. When asked how far away Cuilian Deng lived from plaintiff in China, plaintiff answered: "From here across the street, not too far away." As for the whereabouts of Ze Qing Deng, plaintiff stated he also lived "across the street" from plaintiff.
Based on plaintiff's deposition testimony, defendants moved to abate the wrongful death action for plaintiff's failure to join and serve Cuilian Deng and Ze Qing Deng. In opposition, plaintiff filed a release purportedly signed by Cuilian Deng and Ze Qing Deng. The trial court granted the motion to abate proceedings in December 2013. The court expressed "questions and concerns about the validity of the release allegedly signed by the omitted heirs," and directed plaintiff to name and properly serve his siblings.
Plaintiff filed a Doe amendment naming Ze Qing Deng and Cuilian Deng as defendants. Plaintiff's counsel filed a declaration a few months later to provide the court a status update. The declaration stated that plaintiff had hired a process service company to translate the summons and complaint into Chinese, transmit the documents to the Chinese government, and return a certificate of service to plaintiff's counsel. The process was to take three to five months.
Plaintiff's counsel filed a series of status update declarations over the next year. The Chinese government had rejected the requests for service due to noncompliance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The process service company had resubmitted the requests for service in September 2014, and plaintiffs' counsel was awaiting a response from the Chinese government.
The trial court issued an order to show cause why plaintiff should not be sanctioned in September 2015 for failing to serve his siblings with the summons and complaint. Plaintiff's counsel responded by declaration. Attached to the declaration was a certificate from the Chinese government indicating that Cuilian Deng had been served. There was no certificate of service on Ze Qing Deng. Plaintiff's counsel did not mention having made any additional efforts to ensure that Ze Qing Deng was served. Though it is unclear from the record, it appears that no sanctions were imposed and the matter continued abated.
El Camino Hospital moved to dismiss the action in April 2016, citing plaintiff's failure to serve Ze Qing Deng and his failure to diligently prosecute the action. (Citing Code Civ. Proc., §§ 583.210, 583.250, 583.410, 583.420.) Engelhardt and Gladman also moved to dismiss on similar grounds. Plaintiff opposed the motions, arguing that joinder of Ze Qing Deng was not necessary and that the case could proceed to trial. Plaintiff's counsel filed a declaration in support of the opposition identical to the status update declaration he had filed over six months earlier.
At the hearing on defendants' motions to dismiss, plaintiff argued the case should not be dismissed because "[m]ultiple efforts were done" to try to serve the siblings in China. The court observed that plaintiff had a duty to make substantial efforts to diligently prosecute the action by making sure all parties were served, and stated it was not "satisfied that the opposition to [the motions to dismiss] showed that there w[ere] ongoing, strenuous, frantic efforts to make sure those last parties were served." The court asked plaintiff's counsel if he could convince it otherwise, to which counsel responded: "No, Your Honor. It's all in the declarations and the documents that we have previously filed with the Court."
The court granted the motions to dismiss with prejudice. The court's written order noted that despite the case having been abated for two and one-half years, plaintiff had never served sibling Ze Qing Deng. The court concluded: "Even if the court has jurisdiction to try the case without the necessary parties, plaintiffs must diligently prosecute the action and show that it was impossible or impractical [sic] to bring all parties in. (Sanders v. Fuller (1975) 45 Cal.App.3d 994 [(Sanders)].) Plaintiff did not attempt to make such a showing."
Plaintiff appealed from the order dismissing his case against defendants. We augmented the record to include the judgment of dismissal, and an amended judgment of dismissal. Plaintiff's notice of appeal is deemed filed as of the date the amended judgment was entered.
II. DISCUSSION
Plaintiff's appellate arguments repeat almost verbatim the arguments he made in the trial court. They can be distilled as follows: because nonjoinder of an heir does not take away the trial court's jurisdiction to hear the wrongful death action, the trial court should have allowed the case to proceed to trial without requiring plaintiff to serve his siblings in China. We begin by summarizing the relevant legal standards regarding a plaintiff's duty to diligently prosecute a case.
A. DISCRETIONARY DISMISSAL STANDARDS
"It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action." (Code Civ. Proc., § 583.130; unspecified references are to this Code.) A trial court "may in its discretion dismiss an action for delay in prosecution ... on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case." (§ 583.410, subd. (a).) The court may dismiss an action for delay in prosecution if, among other things, the action is not brought to trial within three years after it is commenced against a defendant. (§ 583.420, subd. (a)(2)(A), (a)(2)(B); Cal. Rules of Court, rule 3.1340(a).) Factors to be considered when determining whether to dismiss a case for delay in prosecution include: "(1) The court's 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 pursuing 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 determinative 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 court's 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." (Cal. Rules of Court, rule 3.1342(e) (Rule 3.1342).) Portions of the time to bring a matter to trial may be tolled on a showing that bringing the action to trial was "impossible, impracticable, or futile." (§ 583.340, subd. (c).)
"When reviewing a discretionary dismissal, ... an appellate court must presume that the decision of the trial court is correct." (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.) Though the trial court must consider relevant factors when deciding a motion to dismiss, "it is not compelled to state in written or oral form its reasons for granting a discretionary dismissal." (Ibid.) "The burden is on the party challenging the trial court's decision to show that the court abused its discretion." (Ibid.)
B. DISMISSAL WAS NOT AN ABUSE OF DISCRETION
In granting the motions to dismiss, the trial court reasoned that plaintiff had failed to diligently prosecute the action or show that it was impossible or impracticable to serve Ze Qing Deng. El Camino Hospital cited section 583.420 in its motion to dismiss, which allows for discretionary dismissal for delay in prosecution when, among other things, plaintiff fails to bring the case to trial within three years. (§ 583.420, subd. (a)(2)(A).) We construe the trial court's order as a finding that plaintiff failed to bring the case to trial within that time period.
El Camino Hospital focuses on code sections regarding the deadline for a plaintiff to serve a defendant with a copy of the summons and complaint. (Citing §§ 583.210, 583.250.) But those sections would not have supported dismissal of the entire action here because El Camino Hospital does not dispute that it received proper service of the summons and complaint. Violation of those sections would have supported dismissal only of nominal defendant Ze Qing Deng. (See Nelson v. State of California (1982) 139 Cal.App.3d 72, 77 [affirming dismissal of certain defendants—but not the entire action—because plaintiff had failed to serve them with a summons and complaint].) --------
We find no abuse of discretion in the trial court's decision to dismiss the case for plaintiff's delay in prosecuting the action by failing to serve Ze Qing Deng. When the motions to dismiss were filed four years after the complaint, the action had already been abated for over a year and no trial date had been set. (§ 583.420, subd. (a)(2)(A).) The relevant Rule 3.1342(e) factors support the trial court's decision. Plaintiff was wholly responsible for the delay in the proceedings because he had consistently failed to ensure that necessary party Ze Qing Deng was served a copy of the summons and complaint in China. (Rule 3.1342(e)(1).) The trial court could reasonably conclude that plaintiff had not exercised sufficient diligence in seeking to serve the summons and complaint; the last time any attempt was made to contact the Chinese government about the status of service occurred when the process service company resubmitted the service documents in September 2014—a year and a half before defendants filed their motions to dismiss. (Rule 3.1342(e)(2).) As plaintiff's counsel had been informed the process would take three to five months, the trial court could reasonably expect a diligent party to contact the Chinese government well before the motions to dismiss were filed. Given that the case had been in an abated status for much of its duration as a result of plaintiff's failure to serve a necessary party, plaintiff cannot show that the delayed prosecution was due to the nature and complexity of the case. (Rule 3.1342(e)(5).) Finally, plaintiff made no showing that serving Ze Qing Deng was impossible or impracticable (§ 583.340, subd. (c)), and any argument to that effect would be unavailing because plaintiff acknowledged he knew where Ze Qing Deng lived in China.
Plaintiff's appellate arguments do not address any of the foregoing authorities. Instead, he simply argues that the trial court had jurisdiction to try plaintiff's case without Ze Qing Deng and claims that "even in the absence of decedent's omitted siblings this case should have proceeded to trial." But as we have already discussed, the trial court properly exercised its discretion to dismiss the action for reasons independent from the issues plaintiff identifies. Plaintiff's argument is contradicted by the very authorities he cites.
Plaintiff relies on Sanders, supra, 45 Cal.App.3d 994, for the propositions that superior courts have jurisdiction to try wrongful death actions even without certain heirs and that heirs are not indispensable parties under section 389. (Citing Sanders, at pp. 999-1000.) But Sanders affirmed the dismissal of an action because the cross-complainants had not exercised sufficient diligence in serving one of the heirs. (Id. at pp. 1002-1003; see also id. at p. 1002 ["On the record the trial court reasonably could, and presumably did, find that cross-complainants had failed in their 'responsibility of diligent prosecution at every stage of the proceeding.' "].) The Sanders decision is thus entirely consistent with the trial court's decision here.
Plaintiff cites Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801 for the proposition that failure to join an heir does not affect the court's ability to adjudicate a wrongful death action. But the Ruttenberg court made that observation in a case where an omitted heir sued other heirs who had failed to serve the omitted heir in an earlier wrongful death case. (Id. at p. 804.) The Ruttenberg court reasoned that while heirs are not indispensable parties and omitting an heir will not vitiate a court's jurisdiction to try a wrongful death case, "[o]mitted heirs, however, are 'necessary parties,' and plaintiff heirs have a mandatory duty to join all known omitted heirs in the 'single action' for wrongful death." (Id. at p. 808, italics added.) Here the trial court found plaintiff was not diligent in attempting to satisfy his mandatory duty, and it reasonably dismissed the case as a result.
Plaintiff introduces new theories in his reply brief, arguing (1) the release the trial court found questionable was valid, such that the case should not have been abated in the first place; and (2) all siblings were served based on an email attached to plaintiff's counsel's declaration purporting to be from plaintiff's niece stating that Ze Qing Deng received a "Judicial document of being served document [sic] from Santa Clara County Superior Court." Plaintiff forfeited these arguments by failing to raise them in the opening brief, and also by failing to support them with reasoned argument and citations to relevant authority. (City of Palo Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271, 1318.)
III. DISPOSITION
The judgment of dismissal is affirmed. Defendants are entitled to their costs on appeal.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Greenwood, P. J. /s/_________ Premo, J.