Metropolitan News-Enterprise


Friday, July 31, 2020


Page 1


C.A. Says That 9-Month Stay ‘Likely’ Prevented Discovery of Doe’s Identity During That Time

Period During Which Plaintiff Was Powerless to Ascertain What Companies Had a Part in Construction of Project Must Be Excluded From Time Within Which to Serve Process


By a MetNews Staff Writer


Div. Three of the Fourth District Court of Appeal has reversed the dismissal of an action as to a defendant that was substituted for a Doe shortly before three years had elapsed since the suit was filed, and was not served until after the three-year mark, with the appeals court speculating that service could not have been effected during a nine-month stay of proceedings.

The opinion, filed Wednesday, reverses a judgment of dismissal as to Petra Geosciences, Inc., a Costa Mesa company that provides geotechnical and environmental engineering services in connection with project developments. The action is being maintained by Eugene Steciw and others against a developer on alleged construction defects in two homes.

Suit was filed on July 2, 2014 against the developer and Doe defendants. It was not until April 13, 2017, according to the plaintiffs, that they learned the identity of Petra, through discovery.

It amended the complaint to name Petra, and served it with the summons and complaint on Aug. 9, 2017—three years and 38 days after the action was filed.

Code of Civil Procedure §583.240 requires service within three years. However, the statute provides that in calculating the three-year period, there is excluded any time during which “[t]he prosecution of the action or proceedings in the action was stayed” and that “the stay affected service.”

The action was stayed while efforts at alternative dispute resolution were in progress.

Ikola’s Opinion

Justice Raymond J. Ikola wrote:

“The question is, did that stay affect service, thereby extending the time to serve Petra? We conclude it likely did, but that remand is necessary for further findings.

“Our reasoning is simple. One cannot serve an unknown party. If discovery was reasonably necessary to identify Petra, then the stay, which prevented discovery, by extension affected service. We will remand for the court to decide in the first instance whether other reasonable means of identifying Petra existed.”

He elaborated:

“If plaintiffs did have other reasonable means of identifying Petra, then, because the stay itself did not directly prohibit service, the stay did not affect service. It is, after all, still a plaintiff’s burden to serve all parties within three years of filing the complaint. And if there were practical and reasonably discoverable means of doing so without formal discovery, then the stay did not impede service and the tolling provision does not apply.”

Unusual Procedure

Ikola’s opinion reverses a decision by Orange Superior Court Judge Derek W. Hunt, who was appointed to the bench in 1997. The opinion recites that Petra’s motion to dismiss was scheduled to be heard on July 24, 2018; attorneys in the case were in court on July 10 on unrelated motions in the case; Hunt advanced the motion to dismiss to that day, though although Steciw’s opposition was not due until the following day and had not been filed

An attorney for Steciw indicated he wanted to file the opposition and Hunt responded:

“The way it works is, file when you can. I’m not going to turn it down. I start reading. And when I get bored, I stop reading.”

He added:

“Put the good stuff up front.”

The opposition was electronically filed at 5:37 p.m. that day. However, the minute order for July 10, at 9 a.m., reflects:

“As more fully discussed on the recor[d], the court rules as follows:

“1. Motion to Dismiss, granted, without prejudice to subsequent litigation.”

Steciw moved for reconsideration on the ground that Hunt had ruled without reading the opposition. The judge denied the motion in chambers, without explanation.

The case is Steciw v. Petra Geosciences, Inc., 2020 S.O.S. 3504.


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