Pandemic-Related Excuses for Not Serving Defendant Within Three Years Rejected
C.A. Finds Insufficient Unavailability of Process-Serving In New York, Judicial Council’s Emergency Orders
By a MetNews Staff Writer
Failure of plaintiffs to effect service of process within the statutorily-set three-year period on a defendant in a breach of contract/fraud action, stemming from a $1.5 million loan not having been repaid, was not excused based on the non-availability of process servicers in New York during a period early in the pandemic nor in light of Judicial Council emergency rules and orders staying litigation, the First District Court of Appeal has held.
The opinion, filed Thursday and not certified for publication, was authored by Justice Danny Y. Chou of Div. Five. It affirms an order by San Francisco Superior Court Judge Richard Ulmer Jr. dismissing the action as to defendant John Pileggi in light of the plaintiffs’ noncompliance with Code of Civil Procedure §583.210(a), which provides:
“The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.”
However, plaintiffs Louis Navellier and Navellier & Associates argued, compliance is excused under Code of Civil Procedure §583.240, which says:
“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.[¶]…[¶] (d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiffs control….”
Pileggi had an office in New York, but service there was effectively precluded for at least five months, the plaintiffs asserted, invoking subd. (d) of §583.240. When the period of tolling under subd. (d) is factored in, Pieggi was served well within the three-year period, Navellier and his company maintained.
Service was effected on June 14, 2022, through substitute service on Pieggi’s wife at the couple’s residence in Yonkers, New York, more than three years and two months after the lawsuit was filed.
The plaintiffs contended in their opening brief on appeal:
“There were lockdown orders. People, including process servers in New York state, had an impracticable, if not impossible, time trying to personally serve people, not only because the process servers (who could not even venture out without violating lockdowns and restrictions and fear of contracting COVID) could not personally serve people, but also because people would not even open the door to strangers (process servers or anyone else) for fear of contracting COVID. That was the situation from March 2020 until at least January 2021, when the first COVID vaccines came out.”
The brief adds:
“Not only were process servers barred by government from personally serving people, but process servers were afraid to personally serve people due to the COVID pandemic.”
The record included declarations from two New York process servers saying that many companies that normally provided personal service of papers were shut down from March through August 2020.
“But even if true,” Chou wrote, “this does not establish that it was impossible, impracticable, or futile to serve Pileggi during the pandemic.” He explained:
“Even assuming personal service was impossible or impracticable during part of the three-year service period in this case, the Navellier Plaintiffs could have used a far simpler method to serve Pileggi. Section 415.40 authorizes service on a nonresident defendant by mailing him or her copies of the summons and complaint ‘by first-class mail, postage prepaid, requiring a return receipt.’ Service is deemed effective 10 days after the mailing, regardless of whether the defendant signs or mails back the return receipt….There is no evidence that the Navellier Plaintiffs attempted to or were unable to serve Pileggi by mail in accordance with section 415.40.”
“And their assertions that it was ‘not possible’ to effect service by mail and that Pileggi’s residence was “not known or discoverable, despite diligent searches,” are not supported by the record. Indeed, the evidence they cite does not show what efforts, if any, they made to locate Pileggi’s residential address. Therefore, the trial court was within its discretion in refusing to toll the time to serve pursuant to section 583.240, subdivision (d) because the ability to serve Pileggi was not beyond the Navellier Plaintiffs’ control.”
The plaintiffs also asserted that California Supreme Court orders “declare that the days from March 18, 2020 to June 19, 2020, totaling 94 days, be deemed holidays under and for the purposes of C. C. P. §§ 12 and 12a.” They set forth:
“Section 12 of the C. C. P.—‘Computation of Time’—provides that the time in which any act provided by law to be done is computed by extending the last day if it is a holiday. Thus, they were tolling orders and are excluded in calculating the time period for completing the act of service and filing the proof of service. It is clear that these Orders were issued to relieve parties by extending deadlines due to COVID. In addition, the Judicial Council of California issued Emergency Order 9(a) to toll deadlines.”
Chou responded that §583.240(b) creates tolling where “prosecution of the action or proceedings in the action was stayed and the stay affected service prosecution of the action or proceedings in the action was stayed and the stay affected service” and that to prevail, the plaintiffs would have to show that that a stay extended to service of process. It didn’t, he said.
Rather, the jurist pointed out, the Judicial Council rendered all days between March 18, 2020 through June 19, 2020 to be, with emphasis added by him, “holidays for the purposes of computing the time for filing papers with the Court under” §12 and §12a. He reasoned:
“Thus, these orders merely extended the time for filing documents with the court; they did not affect the time to serve process.”
Emergency rule 9(a), he noted, “only suspended the running of the limitations period for initiating an action; it did not stay the prosecution of any actions or suspend the time for service of process.”
Nonamenable to Service
The plaintiffs also contended that “when service of process could not be effected” on Pileggi “because he was out of state and his presence was hidden and unknowable, despite Plaintiffs’ diligent efforts to locate him, or when he was spotted at the Money Show in Orlando, Florida but dodged service—he was not amenable to the process” of the court, bringing into play tolling under §583.240(a).
Chou said the phrase “not amenable to the process of the court” in subd. (a) “refers to the court’s authority to exercise personal jurisdiction over a defendant, and not to the defendant’s ‘reasonable availability, as a practical matter, for service of process.’ ”
Also rejected was the contention that service on co-defendants who were on privity with Pileggi constituted service on Pileggi because, the justice said, “a party in privity with a defendant is not one of the parties authorized by statute to accept service on that defendant’s behalf.”
The case is Navellier v. Putnam, A166476.
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