Wong v. Ascendmed

Tolling of Three-Year Period

However, there are several circumstances provided by statute “that operate to toll the threeyear period in which service must be made.” (Watts v. Crawford (1995) 10 Cal.4th 743, 748.)

Specifically, Civil Procedure section 583.240 states that:

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.

(Code Civ. Proc., § 583.240.)

With respect to the exception contained in Section 583.240(d), “[t]he burden of proof is on the plaintiff, and we will not disturb the trial court's determination unless the plaintiff also proves the trial court abused its discretion.” (State ex rel. Edelweiss Fund, LLC v. JP Morgan Chase & Co. (2020) 58 Cal.App.5th 1113, 1121.)

In addition, the exceptions codified in section 583.240, subdivision (d) must be construed

strictly against the plaintiff.” (Shipley v. Sugita (1996) 50 Cal.App.4th 320, 326.)

Stay of Action

Plaintiffs first contend that the three-year period for service of the Summons was tolled while the instant action was stayed from February 27, 2023 to June 13, 2024.

On October 27, 2022, Defendant Fritz Baumgartner, M.D. (Defendant Baumgartner) filed a motion to stay the proceedings in this action pending the resolution of the criminal proceedings against him. (See ROA # 16.)

On February 27, 2023, the court granted Defendant Baumgartner’s motion to stay and “stay[ed] all proceedings in this action for an initial period of 6 months.” (ROA # 52.)

On June 13, 2024, the court held a Case Management Conference and “[u]pon inquiry of the Court, Counsel confirm[ed] the criminal matter ha[d] been resolved.” (ROA #71.) The court then ordered that the stay be lifted. (Ibid.)

At that time, the court and Counsel discussed service upon Defendant Rucks and the court admonished Counsel for Plaintiffs regarding the rules of court on service of the complaint. (See ibid.; see also (See Cal. Rules of Court, rule 3.110(b) [“The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint.”].)

The court continued the Case Management Conference for more than five months to November 21, 2024, and advised Counsel that it intended to dismiss any defendants who had not been served by that date. (See ibid.) In this case, the stay covered “all proceedings in this action” but did not encompass service on the defendants.

The record indicates that Plaintiffs understood this and attempted to serve Defendant Rucks before the stay was lifted. (See Declaration of Candice Wheeler (Wheeler Decl.), ¶ 2 [“On June 6, 2024, I was assigned the task of personally serving Defendants THUY RUCKS aka THUY TU NGUYEN . . . .”].)

Moreover, Plaintiffs do not provide any evidence that the stay affected their ability serve Rucks, as required by Section 583.240(b).

Therefore, Plaintiffs fail to meet their burden to show that the February 27, 2023 stay “affected service.” (Code Civ. Proc., § 583.240, subd. (b).)

As a result, the three-year period for service was not tolled pursuant to Section 583.240(b).

Service Was Impossible, Impracticable, or Futile

Plaintiffs next argue that the time to serve Defendant Rucks was tolled because service was impossible, impracticable, or futile due to causes beyond the Plaintiffs’ control.

Whether a plaintiff exercised reasonable diligence is a relevant factor in evaluating whether service was impossible, impracticable, or futile, but proof of reasonable diligence does not itself excuse untimely service. (Torrey Hills Community Coalition v. City of San Diego (2010) 186 Cal.App.4th 429, 436-437; Bishop v. Silva (1991) 234 Cal.App.3d 1317, 1321-1322; Dale v. ITT Life Ins. Corp. (1989) 207 Cal.App.3d 495, 503, fn. 9.)

In addition, for Section 583.240(d) to apply, the plaintiff must show that service was impossible, impracticable, or futile due to “a cause beyond the plaintiff’s control.” (Code Civ. Proc., § 583.240, subd. (d).) Ordinarily, service is within the plaintiff’s control. (Bishop v. Silva, supra, 234 Cal.App.3d at p. 1322.)

In this case, Plaintiffs’ evidence does not show that it was impossible or impracticable to serve Defendant Rucks within the three-year period.

While Plaintiffs submit evidence that they attempted to serve Defendant Rucks at various addresses in June, July, and November of 2024, (see Wheeler Decl., ¶¶ 3-5, 7), they also concede that they were aware in 2022 of a criminal action involving Defendant Rucks, (see Declaration of Juan D. Garcia, Esq. (Garcia Decl.), ¶ 3.)

As Defendant Rucks notes, Plaintiffs could have checked the docket of her criminal case and determined when she would be appearing in the criminal court and served her at that time.

Plaintiffs also point to the fact that, on November 15, 2024, six days before the court’s deadline to serve Defendant Rucks, Plaintiff applied for orders for publication of the Summons and Complaint for Defendant Rucks and Defendant Sober Life USA, Inc. (See ROA # 77, # 81.)

However, on November 20, 2024, the court denied Plaintiffs’ Applications for Publication of Summons. (See ROA # 84.) The court found that Plaintiffs had not met the requirements for service by publication because “[o]ther than making one vague reference to skip-tracing and unsuccessfully requesting a forwarding address from the post office, Plaintiffs have not indicated what steps they have taken to obtain either the residential or business addresses of the Defendants, or what sources they have availed themselves of to obtain said addresses.” (Ibid.)

Further, Plaintiffs present no evidence as to why they were unable to serve Defendant Rucks in the nearly year-long period between November 20, 2024 (when the court denied Plaintiffs’ Application for Public of Summons on Defendant Rucks) and November 18, 2025 (when Plaintiffs moved to amend the Complaint to name Defendant Rucks as Defendant Doe 1). (See ROA #84, #93.)

Plaintiffs fail to meet their burden to show that “was impossible, impracticable, or futile due to causes beyond the plaintiff's control.” (Code Civ. Proc., § 583.240, subd. (d).)

Therefore, the three-year period for service was not tolled pursuant to Section 583.240(d).

Improper Amendment to Name Defendant Thuy Rucks as Doe Defendant

On November 21, 2024, the court dismissed Defendant Rucks without prejudice pursuant to the court’s own motion as well Civil Procedure Code section 583.420(a)(1) and California Rules of Court rule 3.1340. (See ROA #89.)

Almost a year later, on November 18, 2025, Plaintiffs amended the Complaint to name Defendant Rucks as Defendant Doe 1.

However, in order to use this procedure, the plaintiff must be genuinely “ignorant of the name

of the defendant” and the amendment may be made only “when [the doe defendant’s] true name is discovered.” (Code Civ. Proc., § 474.)

In this case, at the time of the filing of the Complaint, Plaintiffs were aware of the name of Defendant Rucks because Plaintiff explicitly named her as a defendant in the Complaint. (See Compl., ¶ 6 [“Upon information and belief, Defendant THUY RUCKS aka THUY TU NGUYEN (“NGUYEN” or “Defendant”) was the sole shareholder, officer, director, and principal of SOBER LIFE and currently resides in the County of Orange, State of California.”].)

Plaintiffs did not become aware of Defendant Rucks’ true name on or around November 18, 2025, when they amended the Complaint to name her as a Doe Defendant.

Thus, Plaintiffs improperly renamed Defendant Rucks as a Doe Defendant and the court will dismiss her for that reason.

For these reasons, the court will grant the motion to dismiss.

Defendant Rucks shall give notice of this ruling.

2 Chen vs. Tesla Motors, Inc. Motion to Compel Arbitration

Defendant Tesla Motors, Inc.’s Motion to Compel 30-2026-01537813 Binding Arbitration is GRANTED.

The parties are ORDERED to arbitrate the claims asserted by Plaintiff Alex Chen in this action.

This action shall be STAYED pending completion of the arbitration proceedings.

*The court SETS an ADR Review Hearing for December 10, 2026, at 10:00 a.m. in Department N15.

The Request for Judicial Notice in Support of Defendant Tesla Motors, Inc.’s Motion to Compel Arbitration is GRANTED as to Exhibit 3. (See Evid. Code, § 452, subd. (d).)

Pending Motion