Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCUK-CVPO-03-91571
NEEDHAM, J.
Plaintiff Melvin R. Ford appeals from a judgment dismissing his action against defendant Dominican Sisters of Mission San Jose, Inc. (Dominican), based on his failure to serve the complaint within three years after the action was commenced. (Code Civ. Proc., § 583.210, subd. (a).) He contends that he effected timely service when, two days before the mandatory three-year period expired, he left a copy of the complaint at the office of the registered agent for service of process without personally serving her or mailing her copies.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
I. Procedural History
On December 29, 2003, plaintiff filed this action for childhood sexual abuse against does 1-30, based on acts allegedly occurring when he was eight years old. Certificates of merit were filed with the court on February 27, 2004, pursuant to section 340.1, subdivision (h). On November 7, 2005, plaintiff filed a motion to file an amended complaint and certificates of corroborative fact, as required by section 340.1, subdivision (n), which were placed under seal. On August 11, 2006, plaintiff filed a first amended complaint substituting a number of named parties for doe defendants, including Dominican and Capuchin Franciscans, Inc. (Capuchin). A second amended complaint was filed on December 22, 2006, with permission of the court.
In the second amended complaint, Capuchin is identified as “Capuchin Franciscan Friars, Inc.” In a motion to dismiss and quash service, Capuchin identifies itself as “The Capuchin Franciscan Order of California.”
No attempt was made to serve Dominican until December 28, 2006, when plaintiff’s counsel went to 43326 Mission Boulevard in Fremont, the business address of Gloria Marie Jones, Dominican’s registered agent for service of process. Jones was not in the office, so counsel left the complaint with Judy Archer, another employee of Dominican who worked at that address, but who was not a corporate officer or manager and had not been designated as an agent for service of process for the corporation. There is nothing in the record to suggest that counsel at any time mailed copies of the second amended complaint to Jones as the registered agent. On January 16, 2007, counsel filed a proof of service stating that he had personally served Dominican on December 28, 2006, by leaving a copy of the summons and complaint with “Rose Marie Hennessey, agent for service of process.”
Dominican filed a motion to dismiss on the ground that it had not been properly served within three years of the commencement of the action, as is mandatory under section 583.210, subdivision (a). Alternatively, Dominican asked the court to exercise its discretion to dismiss the case under sections 583.410 and 583.420, subdivision (a)(1), based on plaintiff’s failure to diligently prosecute the action.
Plaintiff opposed the motion, arguing that he had personally served Dominican on December 28, 2006, which fell within the three-year period; that Dominican was estopped from claiming service was improper; and that under the statutory scheme for sexual abuse cases, the three-year service period had been tolled or extended. Plaintiff’s counsel filed a supporting declaration in which he stated that he had personally served Judy Archer with the second amended complaint after she advised him that she was authorized by “Rose Marie Hennessey” to accept service. Counsel also stated that he had been suffering from depression due to the deaths of several family members, which “caused [him] to be away from the office and has caused delays in work performance.”
The trial court granted Dominican’s motion to dismiss, concluding that service had not been effectuated within three years of the date the complaint was filed as required by section 583.210, subdivision (a). The court alternatively exercised its discretion to dismiss the case based on plaintiff’s failure to diligently prosecute the action, citing section 583.410 et seq. and rule 3.1342 (formerly rule 373(e)) of the California Rules of Court. This appeal follows.
Although the court also dismissed the case against defendant Capuchin on similar grounds, plaintiff’s opening brief specifically states that he is not appealing that order. Capuchin has nonetheless filed a respondent’s brief noting that no arguments have been made as to the order dismissing it from the case. It is unnecessary to further address Capuchin’s brief.
II. Discussion
Section 583.210, subdivision (a) provides, “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.” Section 583.250 provides, “(a) If service is not made in an action within the time prescribed in this article: [¶] (1) The action shall not be further prosecuted and no further proceedings shall be held in the action. [¶] (2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action . . . . [¶] (b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”
The time for serving a party originally named as a doe defendant runs from the date the complaint was filed. (See Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1118; Warren v. Atchison, T. & S. F. Ry. Co. (1971) 19 Cal.App.3d 24, 38.) Here, the complaint was filed on December 29, 2003, and plaintiff had until three years of that date—December 29, 2006—to identify and serve doe defendants. Service of the summons and complaint must be valid to satisfy section 583.210. (Mannesmann DeMag, Ltd. v. Superior Court (1985) 172 Cal.App.3d 1118, 1125.) “‘A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action’ [citation], and a defendant has an absolute right to demand that process be issued against him in a manner prescribed by law. As a general rule, however, the provisions of the rules governing service of process are to be liberally construed.” (Id. at p. 1122.)
A corporation such as Dominican may be served in the following ways: (1) personal service on the “person to be served,” which in the case of a corporation is either the designated agent for service of process, a corporate officer or other head of the corporation, or a general manager or person authorized by the corporation to receive service of process (§§ 415.10, 416.10, subds. (a) & (b)); (2) leaving a copy of the summons and complaint at the “usual office” of the person to be served, in the care of a person “who is apparently in charge thereof,” and then mailing copies to the person to be served (§ 415.20); (3) mailing copies of the summons and complaint to the person to be served with a notice of acknowledgment and receipt (§ 415.30); or (4) service by publication if the person cannot otherwise be served (§ 415.50). Service of Dominican was not effectuated by any of these methods.
Plaintiff’s counsel attempted to personally serve Dominican on December 28, 2006, the second-to-last day of the three-year period under section 583.210, subdivision (a). He went to the office of its registered agent for service of process, Gloria Marie Jones, and left a copy of the summons and complaint with Judy Archer, an employee who was not authorized to accept service on behalf of the corporation. Plaintiff’s counsel filed a declaration with the trial court indicating that Archer had told him that a “Rose Marie Hennessey” had authorized her to accept service. Even if we assume that Rose Marie Hennessey is a misnomer, and that counsel was actually referring to Gloria Maria Jones, “[a]n extra judicial statement of a person that he or she is the agent of another is not admissible to prove the fact of agency unless the statement is either made in the presence of or communicated to the principal and the principal acquiesces in that statement.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1437 (Dill).)
Absent a showing by admissible evidence that Archer was an authorized agent of Dominican, service on Dominican can be upheld only if, pursuant to section 415.20, copies of the summons and complaint were mailed to Jones, the actual registered agent for service of process, or to a corporate officer or manager authorized to accept service. Under this method, service “is deemed complete on the 10th day after the mailing.” (§ 415.20, subd. (a).) There is no evidence plaintiff or his counsel ever mailed copies to Jones, and Archer stated in a declaration that no such copies were ever received at the office. Service was not accomplished within the three-year period established by section 583.210, subdivision (a).
Appellant argues that the three-year period was tolled or extended by section 340.1, which governs the filing of childhood sexual abuse claims. Under that statute, in cases where the plaintiff is 26 years or older, the plaintiff’s attorney and a licensed mental health practitioner must file certificates of merit to the effect that there is “reasonable and meritorious cause for the filing of the action,” and “a reasonable basis to believe that the plaintiff had been subject to childhood sexual abuse.” (§ 340.1, subds. (g) & (h)(1)-(2).) In such cases, “no defendant may be served, and the duty to serve a defendant with process does not attach, until the court has reviewed the certificates of merit . . . and has found, in camera, based solely on those certificates of merit, that there is reasonable and meritorious cause for the filing . . . . At that time, the duty to serve that defendant with process shall attach.” (§ 340.1, subd. (j), italics added.) In this case, certificates of merit were filed in February 2004.
The record before us does not reveal whether the trial judge made a determination of merit based on those certificates, but the parties agree in their briefs that a review was conducted in February 2004 and treat that as the operative date for the court’s determination of merit.
It is debatable whether section 340.1 effectively tolls the three-year period for serving the complaint. Under section 583.250, subdivision (b), the three-year period for service under section 583.210, subdivision (a) is “not subject to extension, excuse, or exception except as expressly provided by statute.” (Italics added.) Section 340.1, subdivision (j) does not expressly refer to section 583.210, subdivision (a), but it does state that the “duty to serve” does not attach until the certificates have been reviewed.
We need not resolve that issue here, because even if we assume that the three-year period under section 583.210, subdivision (a) did not begin to run until the certificates of merit were filed and reviewed in February 2004, there is nothing in the record to indicate that valid service on Dominican was effected within three years of that date—by February 2007—or at any other time. As discussed above, plaintiff’s counsel did not personally serve a corporate officer or registered agent when he left the summons and complaint with Judy Archer on December 28, 2006, and there is nothing to suggest he ever followed up by mailing copies to a person who was authorized to accept service. (§§ 416.10, 415.20, 415.30.) Even if we liberally construe the service of process statutes, plaintiff has not carried his burden of demonstrating that he effected service within three years of the commencement of the action. (Dill, supra, 24 Cal.App.4th at pp. 1439-1440.) Substantial evidence supports the trial court’s order dismissing the action for failure to comply with section 583.210, subdivision (a). (Graf v. Gaslight (1990) 225 Cal.App.3d 291, 295, disapproved on other grounds in Watts v. Crawford (1995) 10 Cal.4th 743, 758.)
Moreover, the trial court in this case also relied on sections 583.410 and 583.420, subdivision (a), which allow a discretionary dismissal based on a plaintiff’s lack of diligence in prosecuting the case when service of the complaint has not been made within two years of the commencement of the action or the case has not been brought to trial within three years. (§ 583.420, subd. (a)(1) & (a)(2)(A).) While section 340.1, subdivision (j) might arguably toll the three-year period in which service must be made, appellant does not claim that its suspension of the “duty to serve” during the time that certificates of merit are being reviewed precludes the court from exercising its discretion to dismiss the action based on the plaintiff’s unreasonable delay in prosecution. The dismissal order must be upheld on this alternative basis unless the court abused its discretion in finding that plaintiff did not diligently prosecute the action. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)
Section 583.410 provides, “(a) The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case. [¶] (b) Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.” Section 583.420 provides in relevant part, “(a) The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred: [¶] (1) Service is not made within two years after the action is commenced against the defendant. [¶] (2) The action is not brought to trial within the following times: [¶] (A) Three years after the action is commenced against the defendant . . . .”
There was no abuse of discretion here. The original complaint was filed on December 29, 2003, naming only doe defendants, and five months later, in May 2004, plaintiff’s former counsel reported that he was still conducting his investigation. Plaintiff’s current counsel substituted into the case in January 2005, but he did not appear at a February 2005 case management conference and in March 2005, the court issued an order to show cause (OSC) as to whether the action should be dismissed for failure to comply with the delay reduction rules. Certificates of corroborative facts, which are prerequisites to naming doe defendants in sexual abuse cases under section 340.1, subdivisions (m) and (n), were not executed until almost two years after the case was filed, in November 2005. Nine months later, in August 2006, a first amended complaint naming Dominican and other parties was filed. A second OSC for plaintiff’s counsel’s nonappearance was issued on November 17, 2006, and at a December 22, 2006 status conference, plaintiff filed a second amended complaint. Plaintiff did not attempt to serve Dominican until December 28, 2006—almost three years after the date the original complaint was filed. The declaration of Judy Archer, submitted in support of Dominican’s motion to dismiss, indicates that Dominican had been available to be served from the time the action was commenced.
In his declaration filed in opposition to Dominican’s motion to dismiss, plaintiff’s counsel acknowledged that he had been suffering from depression which had caused delays in his work. Counsel does not provide details, and in any event, his neglect does not provide an exception for dismissal under section 583.410. (See Graham v. Beers (1994) 30 Cal.App.4th 1656, 1658 [section 473 relief from default provisions do not apply to dismissals under section 583.410 based on attorney neglect].) Plaintiff did not bear his burden of showing excusable delay. (Terzian v. County of Ventura (1994) 24 Cal.App.4th 78, 83.)
Plaintiff finally complains that the trial court failed to consider the factors relevant to discretionary dismissal that are enumerated in rule 3.1324 (formerly rule 373(e)) of the California Rules of Court. This contention is belied by the trial court’s written order, which specifically states that it considered these factors.
III. Disposition
The judgment (order dismissing the action against respondent Dominican pursuant to sections 583.210, 583.410 & 583.420) is affirmed. Costs on appeal are awarded to Dominican. As to defendant Capuchin, which filed a respondent’s brief in this matter, the parties shall bear their own costs.
We concur. JONES, P. J., SIMONS, J.