Vanrooy v. Jacobes-Downing-Hughes CA3

Filed 4/7/25 Vanrooy v. Jacobes-Downing-Hughes CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sutter) ----

DELACY VANROOY, C100312

Plaintiff and Appellant, (Super. Ct. No. CVCS20- 0000150) v.

JACOBES-DOWNING-HUGHES, INC.,

Defendant and Respondent.

Plaintiff Delacy Vanrooy (plaintiff) challenges an order dismissing her complaint against defendant Jacobes-Downing-Hughes, Inc. (defendant) for failure to serve process within the mandated three-year period (Code Civ. Proc.,§§ 583.210, 583.250).1 On appeal, plaintiff contends her delay in serving the complaint should have been excused, or that defendant should have been estopped from seeking dismissal, because defendant’s authorized agent for service of process intentionally evaded service during a five-week

1 Undesignated section references are to the Code of Civil Procedure.

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period in which service was attempted. Plaintiff alternatively argues—for the first time on appeal—that the trial court erred in denying her requests for an order authorizing her to serve defendant by publication or through the Secretary of State. Finally, plaintiff argues the trial court erred in dismissing the action “with prejudice” and in awarding costs to defendant as the prevailing party in a California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) action. We find no error in the trial court’s decision to dismiss the action for failing to serve the complaint within three years. The court could reasonably conclude that regardless of any difficulties encountered in attempting to serve defendant’s registered agent in the months after the complaint was filed, it did not excuse her lack of diligence in effectuating service or estop the defendant from seeking dismissal. We decline to reach plaintiff’s argument about service by publication or substitute service, finding plaintiff forfeited it by failing to raise it below. We agree, however, that the trial court erred by dismissing the action with prejudice and awarding costs to the defendant as the prevailing party in a FEHA action. Thus, we will modify the order of dismissal to correct these errors and affirm the order as modified. PROCEDURAL BACKGROUND Plaintiff commenced this action against defendant by filing a FEHA complaint for discrimination, sexual harassment, and related claims. Plaintiff filed the underlying complaint on January 22, 2020, but did not serve it on defendant until August 14, 2023, more than three and one-half years after the action was filed. In September 2023, defendant (by special appearance) moved to dismiss the complaint for untimely service (§§ 583.210, 583.250). Plaintiff opposed, arguing that defendant should be estopped from seeking dismissal, or that the untimely service should be excused, because defendant’s authorized agent for service of process was not “ ‘amenable to service.’ ” In support of her opposition, plaintiff relied on a “declaration” from two process servers summarizing (in table format) multiple attempts to personally