CARDCONNECT, LLC vs. SHIELDS

The Court OVERRULES Objections Nos. 1-8.

Plaintiff to give notice. 104 CARDCONNEC T, LLC vs. SHIELDS, 20-01150194 Defendant Jeffrey S. Benice (“Defendant”) moves to dismiss the First Amended Complaint of Plaintiff CardConnect, LLC (“Plaintiff”) pursuant to Code of Civil Procedure sections 583.310 and 583.360.

Defendant argues Plaintiff has failed to bring this action to trial within five years since its commencement. Defendant contends that the stay imposed upon receipt of Plaintiff’s Notice of Stay of Proceedings Re: Bankruptcy does not toll the five-year period because Plaintiff was obligated to exercise reasonable diligence in requesting that the stay be lifted as to the defendants who had not filed the bankruptcy petition, and was advised on May 23, 2024 that a motion to list the stay could be filed, and Plaintiff failed to act.

“An action shall be brought to trial within five years after the action is commenced against the defendant.” (Code Civ. Proc., § 583.310.) “As to a defendant either expressly named in the original complaint, or named in the original complaint by a fictitious name, the action commences on the date of the filing of the complaint. [Citation.] But when a new party is added to the action, the action commences as to that party on the date of the order adding him or her as a party or on the date of filing of the pleading naming him or her as a new party.” (Gray v. Firthe (1987) 194 Cal.App.3d 202, 209; see also Seto v. Szeto (2022) 86 Cal.App.5th 76, 95, fn. 5 [“The five-year period is calculated separately for each defendant.”].)

Defendant cites to Rosefield Packing Co. v. Superior Court (1935) 4 Cal.2d 120 to argue that the five-year period runs from Plaintiff’s filing of the initial complaint rather than the first amended complaint. In Rosefield, the California Supreme Court held that, despite the filing of an amended complaint by stipulation of the parties, the five-year time period ran from when the original complaint was filed. (Id. at pp. 124-125.) The Court did not consider whether a new five year period is triggered if an amended complaint adds a new defendant. Thus, Rosefield cannot stand for the proposition that an amended complaint which adds a new defendant does not trigger a new five year period as to

that defendant. (Wishnev v. The Northwestern Mutual Life Ins. Co. (2019) 8 Cal.5th 199, 217.)

Further, Rosefield was decided based on former section 583, which was repealed in 1984 and replaced by a new statutory scheme. As held in Gray, “changing the operative phrase from ‘within five years after the plaintiff has filed his action’ (former § 583, subd. (b)) to ‘after the action is commenced against the defendant’ (new § 583.310) manifests a clear intent to change the law.” (194 Cal.App.3d at p. 208.) Thus, even if Rosefield’s holding may be interpreted to mean an amended complaint would not trigger a new five year period against a new defendant under repealed section 583, Gray makes it clear that such a filing does trigger a five year period as to a new defendant under section 582.310.

Defendant here was not named in this action until the FAC was filed on November 17, 2022. Five years from that date is November 17, 2027, a date which has not passed and is more than a year from the date of this hearing. Accordingly, Defendant’s Motion to Dismiss on this basis is DENIED without prejudice.

Moving party to give notice. 105 Detmers vs. Cancellieri, 25-01532289 Plaintiff, Brett Detmers (“Plaintiff”), moves for an order directing service of summons on Defendant, Jack Augustine Cancellieri (“Defendant”), by publication in a newspapers in general circulation pursuant to Code of Civil Procedure section 415.50.

The manner in which summons must be served in a civil action include (1) personal delivery to defendant (Code Civ. Proc. § 415.10); (2) substitute service by delivery to someone else at defendant’s usual residence or place of business coupled with mailing (Code Civ. Proc. § 415.20); (3) service by mail coupled with acknowledgement of receipt (Code Civ. Proc. § 415.30); and (4) service by publication (Code Civ. Proc. § 415.50). (Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group June 2025 update) ¶¶ 4:181, 4:184, 4:193, 4:225, 4:245.)

“Section 415.10 et seq. governs the manner of service of a summons. A summons may be served by various methods. If service of a summons by other means proves

impossible, service may be effected by publication, upon the trial court’s approval. [Citation.] Section 415.50 governs this method of service.” (Rios v. Singh (2021) 65 Cal.App.5th 871, 880 (“Rios”).)

Code of Civil Procedure section 415.50 states, in part:

(a) A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either: (1) A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action. (2) The party to be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property.

(Code Civ. Proc. § 415.50(a).)

Code of Civil Procedure section 415.50 also states:

(b) The court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served. If the party to be served resides or is located out of this state, the court may also order the summons to be published in a named newspapers outside this state that is most likely to give actual notice to that party. The order shall direct that a copy of the summons, the complaint, and the order for publication be forthwith mailed to the party if his or her address is ascertained before expiration of the time prescribed for publication of the summons. Except as otherwise provided by statute, the publication shall be made as provided by Section 6064 of the Government Code unless the court, in its discretion, orders publication for a longer period.

(Code Civ. Proc. § 415.50(b).)

“As a condition of establishing that the party to be served cannot with reasonable diligence be served in another manner specified in this article, the court may not require