Estate of Rosa Pleitez v. Miles Chemical Company, Inc., et al.

ANALYSIS Ricca's Request for Judicial Notice (RJN) is granted. CCP 583.210(a) provides that "[t]he 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."

CCP 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, whether named as a party or not, after notice to the parties. (b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute."

CCP 583.240 provides: "In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which any of the following conditions existed: (a) The defendant was not amenable to the process of the court. (b) The prosecution of the action or proceedings in the action was stayed and the stay affected service. (c) The validity of service was the subject of litigation by the parties. (d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision."

The deadline is not extended by the fact that Ricca was named in place of a Doe defendant. See Higgins (2017) 15 CA5th 973, 975, 982; Barrington (1985) 39 C3d 146, 154; Norgart (1999) 21 C4th 383, 398-399. The court lacks jurisdiction to proceed where the mandatory service period has expired. Eghtesad (2020) 51 CA5th 406, 417.

Here, Ricca was served in January 2026 which is more than four years after this action was commenced on 10/8/21. Moreover, none of the conditions set forth in CCP 583.240 for tolling the service period apply in this case. As noted above, the original complaint in this action was filed on 10/8/21 naming Doe 8 as a defendant. Therefore, the deadline to serve Ricca, which was named in place of Doe 8, was 10/8/24. Also, as noted above, Ricca was not served until 1/21/26, well beyond the 3 year deadline. As such, dismissal of the claims against Ricca is mandatory. CCP 583.210(a); CCP 583.250.

Plaintiff does not oppose the dismissal of the 2 nd and 3 rd causes of action in the complaint. (See Opposition, p.2:5-6, p.2:18-23). Plaintiff's argument that Rigoberto Pleitez's wrongful death cause of action is not barred because it did not accrue until Decedent's death on 3/26/22, was first asserted in the First Amended Complaint which was filed on 5/24/23, and Ricca was served within 3 years on 1/21/26 is without merit.

In its 6/17/26 ruling on Waxie's motion to dismiss, the Court noted that in Clark (1987) 197 CA3d 50, the Court of Appeal upheld the dismissals of two defendants who had initially be named fictitiously in the complaint on the ground that plaintiffs failed to serve the complaint on defendants within the two-year period provided in CCP 583.420. (See 6/17/26 Minute Order, p.4). In Clark, on 8/20/82, the decedent filed a products liability action alleging injuries caused by exposure to asbestos. Clark, supra at 53.

On 10/24/83, after the decedent's death, on 11/8/82, the decedent's wife was permitted to file an amended complaint to prosecute the decedent's claims and to add a wrongful death claim. Id. On 10/28/84, the plaintiff-wife filed a new action alleging only wrongful death against the same defendants and added Does 1 to 1,000. Id. The allegations in the new action concerned the "same chemical substances named in the original action." Id. at 53-54. In other words, the wife's new complaint for wrongful death was based on the same set of factual allegations.

On 4/18/86, the wife's complaint was amended to name Stabond Corporation (Stabond) as one of the Doe defendants. Id. at 54. The court explained that the use of the CCP 474 "relation-back doctrine" was "ultimately limited by [S]ection 583.210 which provides that, in any event, a defendant must be served within three years." Id. at 56.

Similarly, here, Decedent and Rigoberto Pleitez commenced an action on 10/8/21, alleging various claims against named defendants and Does 1-200. (See Complaint). As to Doe 8, the complaint alleged that "unknown chemicals and caustic products sold by DOES 1 through 200 contain recognized contaminants and caustic substances which are scientifically known to cause and/or contribute to the development of interstitial lung disease and directly caused and/or contributed to the development of Plaintiff's interstitial lung disease." (Complaint P.P. 5, 20, 42-43).

After Decedent's death on 3/26/22, the Estate of Rosa Pleitez, by and through her husband, Rigoberto Pleitez, converted the claims to wrongful death and negligence against Ricca as Doe 8. However, the basis for the claims in the First Amended Complaint remained unchanged. (See FAC P.P.5, 20, 53). The basis of the allegations against Ricca as Doe 8 also remain unchanged in the operative Fourth Amended Complaint. (Compare Complaint P.5 with 4AC P.P. 6, 24). Therefore, this action commenced against Ricca as of the date of the filing of the Complaint on 10/8/21.

The difference between the instant case and Clark, supra, and the cases relied on by Plaintiff (Barrington (1985) 39 C3d 146; Hennessy's Tavern, Inc. (1988) 204 CA3d 1351; Brumley (2007) 156 CA4th 316; Tanguilig (2018) 22 CA5th 313) is that in those cases the mandatory dismissal was not applied because the amended complaints raised a new set of facts and theory of injury. In Barrington, the plaintiff added a new cause of action based on a separate/different factual allegation. See Barrington, supra at 149, 154.

Here, the wrongful death cause of action is based on the same facts alleged in the original complaint in which Rigoberto Pleitez was a plaintiff making a claim for loss of consortium. The factual bases for the claims have remained the same throughout the various pleadings in this action. (See Complaint P.2; FAC P.2; SAC P.2; TAC P.6; 4AC P.6). In Hennessey's Tavern, Inc., new defendants were first named in the amended complaint and not substituted for doe defendants named in the original complaint.

See Hennessey's, supra at 1360. Additionally, a new claim based on an entirely different set of facts was alleged. Id. In Brumley, new facts were also included in the amended complaint. See Brumley, supra at 326. Tanguilig, also involved an amended pleading based on facts different than those alleged in the original pleading. Tanguilig, supra at 322.

The Court also has the discretion to dismiss an action on the ground of delay in prosecution if service is not made within two years after the action is commenced against the defendant. See CCP 583.410; CCP 583.420(a)(1); ZL Technologies, Inc. (2017) 13 CA5th 603, 609. A plaintiff has the burden of showing excusable delay when the action has not been served on the defendant within two years after being commenced against that defendant. Terzian (1994) 24 CA4th 78, 83.

Even if mandatory dismissal was not required under CCP 583.210 and CCP 583.250, discretionary dismissal under CCP 583.420(a)(1) is warranted. Regardless of whether the service deadline is calculated from the original complaint or the First Amended Complaint, Plaintiff did not serve Ricca within two years of filing. Therefore, Plaintiff has the burden of showing excusable delay. Terzian, supra; Salas (1986) 42 C3d 342, 347; Clark, supra at 55. Here, Plaintiff has failed to provide any reason for the delay. As such, Plaintiff has not met the burden of establishing excusable delay, especially considering the prejudice to Ricca by being brought into the case at this late date. See Clark, supra at 58.

CONCLUSION The motion is granted.

Case Number: 25CHCV00845 Hearing Date: August 17, 2026 Dept: F47 Dept. F47 Date: 8/17/26 TRIAL DATE: 7/19/27 Case #25CHCV00845 MOTION TO SET ASIDE DEFAULT Motion filed on 3/2/26. MOVING PARTY: Defendant Kamal Houssain RESPONDING PARTY: Plaintiff Kenk USA Inc. RELIEF REQUESTED: An order setting aside the default entered on 4/24/25 against Defendant Kamal Houssain. RULING: The motion is denied.

SUMMARY OF FACTS & PROCEDURAL HISTORY This action arises out of the alleged embezzlement/conversion of over $2 million from Plaintiff Kenk USA Inc. (Plaintiff) by employees, Defendants Sabah Mou (Mou), convenience store manager, and Defendant Kamal Hossain (Hossain) (collectively, Defendants), cashier. Plaintiff alleges that from approximately January 2022 through December 2024, Defendants "intentionally and deliberately exercised wrongful dominion over approximately two million, two hundred eighty two thousand and forty-four dollars and ninety-five cents ($2,282,044.95) of Plaintiff's cash revenue." (See Complaint P.P.9-16).

On 3/10/25, Plaintiff filed this action against Defendants for: (1) Conversion, (2) Aiding and Abetting In Conversion; (3) Embezzlement and Misappropriation of Funds; (4) Aiding and Abetting in Embezzlement and Misappropriation of Funds; (5) Negligence and (6) Imposition of a Constructive Trust Pursuant to Civil Code 2223, 2224, et seq. On 3/19/25, Hossain was personally served with the summons and complaint. (See Proof of Service filed 3/25/25). On 4/24/25, default was entered against Hossain. On 5/23/25, Mou answered the complaint. On 12/4/25,