Facts

Plaintiff Jose Berdugo Aguilera filed suit against defendant Jerah Rae Farley and Rosa Cruz in relation to a motor vehicle collision. Plaintiff obtained an order to serve the defendants by publication in 2016, and published a summons in a Contra Costa publication and then obtained an order of default for damages in excess of one million. Defendants, specially appearing, successfully quashed service by publication on the grounds that the affidavits of due diligence in support of the application for service by publication were unsigned and the publication was not in their county of residence.

PLAINTIFF'S CONTENTIONS: Plaintiff claimed it properly served defendants.

DEFENDANT'S CONTENTIONS: Plaintiff made no attempts to re-serve defendants until May 2018, when he claimed defendant Cruz was sub-served. In June 2018, he applied for an ex parte order for service by publication on defendant Farley, which application was granted. Defendants, specially appearing, moved to quash the sub-service on Cruz, to set aside the order of publication on Farley, and to dismiss the action for failure to complete service within three years of the filing of the complaint (plus 56 days' tolling while court was considering early motion to quash.).

Defendants contended the lawsuit was improper and could not proceed because plaintiff failed to properly serve defendants within the statutory timing requirements under the California Code of Civil Procedure. Defendants argued that plaintiff failed to complete service when he exceeded the three-year statute of limitations, including the additional 56 days of tolling when the court considered an earlier motion to quash.

Damages

Plaintiff sought damages in excess of $1 million.

Result

The court granted defendants motion to quash service of summons. The case was dismissed pursuant to Code of Civil Procedure section 583.210. The court reasoned that because service of process was not timely for defendant Cruz, service of process could not have been found timely under the Code of Civil Procedure section 583.520 for defendant Farley.