Baugher v. Harris CA1/3

Filed 12/30/13 Baugher v. Harris CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION 3

FRED BAUGHER, Plaintiff and Appellant, A137716 v. TAMMY HARRIS, (Alameda County Super. Ct. No. RG09429206) Defendant and Respondent.

Plaintiff Fred Baugher appeals from an order dismissing defendant Tammy Harris from his medical malpractice complaint under Code of Civil Procedure section 583.250.1 Because substantial evidence supports the trial court’s decision to dismiss, we affirm. BACKGROUND On January 5, 2009, Baugher filed a complaint against defendants Alta Bates Summit Medical Center (Alta Bates) and Tammy Harris seeking damages for medical malpractice for a March 2008 incident that occurred when Harris was temporarily working there as a nurse. On October 27, 2009, Baugher filed a case management statement, which indicated that Harris had not been served because she “has not yet been found.” Baugher claimed he was having trouble locating Harris because she was no longer working in California and “Tammy Harris” was a common name among nurses and “some look alike.” On November 5, 2009, the court imposed sanctions of $500 against Baugher for failing to diligently serve Harris with the complaint, but stayed its order provided that by May 13, 2010, Baugher would serve Harris, dismiss her from the complaint, or request an extension of time.

1 All further statutory references are to the Code of Civil Procedure unless otherwise designated.

1

On or about December 8, 2009, Baugher claimed he served a nurse in Kentucky who was also named Tammy Harris. She was later determined to be the wrong nurse and dismissed from the case on December 24, 2009. On February 25, 2010, Baugher filed proof of service on Harris that included a process server's affidavit of substitute service and a declaration from Baugher’s attorney attesting to its authenticity. The process server left the summons and complaint with Renee Tillman, described as Harris’s supervisor, at Advanced Clinical Employment Staffing, LLC (ACES) in Oneonta, Alabama. ACES confirmed that Harris was a travel nurse and former employee who was no longer working for ACES when service was left with Tillman. ACES also stated that its attorney contacted Baugher’s counsel and informed him that Harris no longer worked at ACES and it was not authorized to accept service on her behalf. Baugher claimed that he continued his efforts to identify and locate Harris “using a variety of discovery methods, including the internet.” He says he ultimately learned Harris’s identity and address in July 2012 during discovery, after Alta Bates and ACES were ordered to produce a copy of Harris’s temporary nursing license. On July 26, 2012, Baugher personally served Harris in Zebulon, Georgia. Harris moved to dismiss for Baugher's failure to serve her within three years of filing the complaint. In opposition to Harris’s motion, Baugher made three arguments. He argued the time to return service should run from late 2009 instead of the original filing date because he amended the complaint with Harris’s correct name late in 2009; for a time Harris was not amenable to service; and service was impossible, impractical, or futile. The court granted Harris’s motion and dismissed her from the complaint. The trial court concluded that Harris had not been served until July 26, 2012, more than three years from the date Baugher's complaint was filed, and dismissal was mandatory under section 583.250. The court also concluded that Baugher “ha[d] not shown that he exercised reasonable diligence in his efforts to locate [Harris] in order to have her served,” that he “merely conducted a search for [Harris] via Internet, and then followed up with written discovery” to Alta Bates and ACES, and that he thus failed to satisfy any of the statutory exceptions to mandatory dismissal. Baugher appeals.