Opinion
F077256
07-23-2018
LENNAR FRESNO, INC., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; GEORGE AQUINO et al., Real Parties in Interest.
Newmeyer & Dillion, Alan H. Packer, Joshua B. Bevitz and Scott W. Glassmoyer, for Petitioner. No appearance for Respondent. Milstein Jackson Fairchild & Wade, Michael K. Fairchild and Mayo L. Makarczyk, for Real Parties in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CECG03348)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for writ of mandamus. Donald S. Black, Judge. Newmeyer & Dillion, Alan H. Packer, Joshua B. Bevitz and Scott W. Glassmoyer, for Petitioner. No appearance for Respondent. Milstein Jackson Fairchild & Wade, Michael K. Fairchild and Mayo L. Makarczyk, for Real Parties in Interest.
Before Franson, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
Petitioner Lennar Fresno, Inc. (Lennar) challenges the denial of its motion to dismiss pursuant to Code of Civil Procedure section 583.250. We conclude Lennar is entitled to relief.
All code references are to the Code of Civil Procedure unless otherwise noted.
BACKGROUND
On June 27, 2013, Leonard DeFendis, and 64 other plaintiffs, filed a construction defect action in the Fresno County Superior Court (DeFendis v. Lennar Fresno, Inc., case No. 13CECG01284) naming Lennar et al. as defendants and asserting various causes of action relating to construction defects (the DeFendis action). It appears the complaint was timely served on Lennar et al.
On October 25, 2013, George and Debra Aquino, and 16 other plaintiffs, real parties in interest herein, filed a complaint in Fresno County Superior Court (Aquino v. Lennar Fresno, Inc., case No. 13CECG03348) naming Lennar et al. as defendants and asserting various causes of action relating to construction defects (the Aquino action).
Lennar filed a motion to stay the DeFendis action due to DeFendis plaintiffs' failure to comply with their contractual prelitigation procedures under Civil Code section 895 et seq., Right to Repair Act (Act). Respondent court granted the motion to stay the DeFendis action in part on May 15, 2014, staying the action until the DeFendis plaintiffs comply with the Act. According to Lennar, as of the date of the filing of the petition, that stay remained in place.
On June 30, 2014, Aquino plaintiffs filed a first amended complaint adding 14 additional homeowners as plaintiffs.
On November 14, 2014, both the DeFendis plaintiffs and the Aquino plaintiffs served prelitigation notice of claims on Lennar for a total of 96 homes; 31 of the homes were part of the Aquino action, and the balance were part of the DeFendis action. When Lennar became aware that some of the homes listed in the notice of claim were part of a separate action (the Aquino action), Lennar requested separate prelitigation notice of claims for plaintiffs in the Aquino action, which was served on June 15, 2017. Neither plaintiffs nor their counsel advised Lennar of the existence of the Aquino action until June 15, 2017. On or around that date, the Aquino plaintiffs attempted to serve the complaint via email. Lennar's counsel confirmed it was not authorized to accept service by email. Lennar was not served with the complaint action until September 29, 2017, at which time the Aquino plaintiffs sought to consolidate the Aquino action with the DeFendis action.
After receiving service of the Aquino action on September 29, 2017, more than three years after the filing of the Aquino action, Lennar filed a motion to dismiss pursuant to sections 583.210 and 583.250, which provide for mandatory dismissal for failure to serve an action within three years of filing the complaint.
Aquino plaintiffs filed opposition to the motion, claiming the Aquino action had effectively been consolidated with the DeFendis action and therefore the Aquino action was subject to the stay entered in the DeFendis action. Following briefing, but prior to hearing, respondent court issued a tentative ruling continuing the matter "to permit the Plaintiffs to submit legal authority in support of its claim that this action was stayed as well as the DeFendis case along with declarations in support of the arguments made in opposition."
Following another round of briefing, the court took the matter under submission and thereafter denied the motion on a ground never briefed. The court's order stated:
"The court has considered the comments made by counsel at the hearing and agrees with defendant that the elements of estoppel have not been established. (See, e.g.[,] Honeywell v. Workers' Comp. Appeals Bd. (2005) 35 Cal. 4th 24, 37[.]) However, it is undisputed that all of the plaintiffs in this action have been undergoing the SB800 pre-litigation process in tandem with the plaintiffs in another case concerning the same
subdivision. So long as the parties comply with the notice and time parameters of the SB800 process, the completion of these procedures is mandatory and here is apparently still ongoing. Accordingly, the court finds that service of the complaint on defendant was at all times 'impossible, impractical [sic] or futile due to causes beyond plaintiffs' control.' (Code Civ. Proc. sec. 583.240(d).) The motion is therefore denied."
DISCUSSION
The sole issue in the petition is whether under the facts of this case, Aquino plaintiffs' failure to timely serve the complaint can be excused.
Section 583.210 provides that a plaintiff must serve "a defendant within three years after the action is commenced against the defendant." (§ 583.210, subd. (a).) Dismissal is mandatory where a plaintiff fails to serve a defendant within the statutory time limits. (§ 583.250.)
The Legislature has articulated four conditions that toll the time for service: "The defendant was not amenable to the process of the court[;] [¶] ... [¶] The prosecution of the action or proceedings in the action was stayed and the stay affected service[;] [¶] ... [¶] The validity of service was the subject of litigation by the parties[; and] [¶] ... [¶] Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control." The Legislature further noted that "Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision." (§ 583.240.)
Respondent court herein found that "service of the complaint on defendant was at all times ' impossible, impractical [sic] or futile due to causes beyond the plaintiffs' control."
According to the Law Revision Commission Comments to section 583.240, "The excuse of impossibility, impracticability, or futility should be strictly construed in light of the need to give a defendant adequate notice of the action so that the defendant can take necessary steps to preserve evidence. Contrast Section 583.340[] and Comment thereto (liberal construction of excuse for failure to bring to trial within a prescribed time). This difference in treatment is consistent with one aspect of the policy announced in Section 583.130[ ]plaintiff must exercise diligence[ ]and recognizes that service, unlike bringing to trial, is ordinarily within the control of the plaintiff. [(17 Cal.L.Rev.Comm. Reports 905 (1984).]" The provisions of section 583.240 are "construed strictly against the plaintiff." (Shipley v. Sugita (1996) 50 Cal.App.4th 320, 326; Williams v. Los Angeles Unified School Dist. (1994) 23 Cal.App.4th 84, 102.)
Section 583.310 provides:
"An action shall be brought to trial within five years after the action is commenced against the defendant."
Section 583.340 provides:
"In computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time during which any of the following conditions existed: [¶] ... [¶]
"(c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile."
Section 583.360 provides:
"(a) An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article.
"(b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute."
The "tolling provisions of ... section 583.340 must be liberally construed consistent with the policy favoring trial on the merits." (Dowling v. Farmers Ins. Exchange (2012) 208 Cal.App.4th 685, 693.)
The distinction between the tolling provisions of section 583.340, subdivision (c) and section 583.240 was acknowledged by the California Supreme Court in Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1102-1103.
The Aquino plaintiffs claim, "Service of process is inconsistent with a party's engagement in the prelitigation procedure, just like any other act that is intended to move a case forward toward trial. The prelitigation procedure is fundamentally not intended to occur at the same time that the homeowners litigate their claims against the builder."
That service is "inconsistent" or "not intended to occur at the same time" does not amount to impossibility, impracticability or futility.
On June 18, 2018, this court issued an order granting the Aquino plaintiffs leave to file a supplemental response to the petition addressing support for respondent court's finding that "service of the complaint on defendant[s] was at all times 'impossible, impractical [sic] or futile due to causes beyond plaintiffs' control.' " No response was filed.
Strictly construing the conditions in this case, service was not impossible, impracticable or futile.
DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to vacate its order issued on February 2, 2018, denying petitioner's motion to dismiss the first amended complaint filed on June 30, 2014, and issue a new order granting petitioner's motion to dismiss petitioner's first amended complaint pursuant to Code of Civil Procedure sections 583.210 and 583.250. Petitioner Lennar is entitled to recover its costs incurred in this writ proceeding.