Notice Of Motion And Motion To Dismiss First-Amended Complaint
Set for Law and Motion/Discovery Calendar on Thursday, June 25, 2026, Line 1.
1 - Defendant Thaddeus Doyka's motion to dismiss is DENIED.
A plaintiff must serve a defendant within three years of commencing the action. (CCP 583.210(a).) The failure to do so shall lead to a dismissal. (CCP 583.250.) Under CCP 583.240, however, the time is excluded where the defendant is not amenable to the process of the court (CCP 583.240(a)); the prosecution of the action was stayed (CCP 583.240(b)); the validity of service was subject of litigation (CCP 583.240(c)); and when service is "impossible, impracticable, or futile." (583.240(d)).
Here, under CCP 340.11(i), the time for service commenced on 12/21/22 when the court issued its order regarding the certificate of merit and reasonable cause to file this action. Plaintiff argues that the time to serve was tolled for 172 days while the parties litigated several motions regarding service. The court agrees that there is tolling but under CCP 583.240(c), calculates the time differently. The court calculated the days based on when the motions to quash were filed and the orders resolving them were entered. The court also added time for the instant motion to quash.
2/29/24 - 6/3/24 (95 days)
7/18/24 - 8/16/24 (29 days)
12/30/24 - 3/10/26 (435 days)
5/13/26 - 6/25/26 (43 days)
Based on the above (602 days), the time to serve has yet to run. The three-year period based on the current record will run on August 14, 2027. The court further notes that this case was in default from 12/6/23 to 5/31/24. But that time is not excluded. (Dale v. ITT Life Ins. Corp. (1989) 207 Cal.App.3d 495 [erroneous entry of default judgment against the defendant did not toll the period for service of process]; Shipley v. Sugita (1996) 50 Cal.App.4th 320, 326 [the exclusions under CCP section 583.240 "must be construed strictly against the plaintiff."].) Plaintiff must exercise diligence, service is usually within the control of the plaintiff, and plaintiff does not show that impracticability of service was due to causes beyond plaintiff's control. Plaintiff's request for sanctions is DENIED.
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