Deadlines. . . They’re Important. Project Owner Risks Losing Claim By Failing to Timely Identify “Doe” Defendant
Earlier this year I filed a complaint in a court which I won’t identify other than to say that it wasn’t the San Francisco Superior Court. Immediately upon filing the complaint the Court gave notice of a trial date. As counsel for the party bringing the action, I appreciate this, as it eliminates the back and forth jostling that can sometimes occur when trying to get a trial date.
Here’s the kicker though. While I appreciate getting a trial date straight out of the gate. The date I got was . . . wait for it . . . not until 2022!
Those who litigate in California state courts know that the courts are understaffed and overworked. But you’ve got to give this un-named court credit for being upfront. Forget the “well, let’s see where this goes” niceties. Trial within a year? Fugetaboutit. Trial within a year and a half. Don’t even think about it. Trial within two years. It’s about as good as you’re going to get.
But it’s not just the courts who have had pre-pandemic issues only get worse since COVID. Everyone these days seem to be running slower in a COVID-induced brain fog. Seriously, it’s a thing. And not just among the Australians. The Irish are apparently feeling it too. And I have a sneaking suspicion so too are we Americans.
With Thanksgiving reduced to your eating a microwaved turkey dinner in front of your television set and Christmas and New Year looking less like reality and more like sugar plums dancing in your head, focused and diligent, should you remain, particularly if you’re litigating this holiday season or any season for that matter.
In the next case, Steciw v. Petra Geosciences, Inc., Case No. G057375 (July 29, 2020), 4th District Court of Appeal, homeowners in a construction defect case nearly lost their right to sue a geotechnical engineer in a claim brought under the Right to Repair Act by failing to serve the engineer within three years after naming the engineer as a defendant.
The Steciw Case
On July 2, 2014, homeowners Eugene Steciw and others sued Shappell Industries and Toll Brothers, Inc. for construction defects arising out of the construction of their homes in a single-family housing development known as San Joaquin Hills in Laguna Niguel, California. In addition to naming Shappell and Toll Brothers as defendants the complaint also named unidentified defendants, including unnamed engineers, as “Doe Defendants.”
In October 2014, Toll Brothers filed a cross-complaint against various subcontractors but not against Petra Geosciences the geotechnical engineer on the project. Two months later, in December 2014, Toll Brothers filed a motion to dismiss the complaint or, in the alternative, stay the action to comply with the pre-litigation procedures of the Right to Repair Act.
On May 25, 2015, the Court granted Toll Brothers’ motion and stayed the action pending compliance with the pre-litigation procedures under the Right to Repair Act. Nine months later, on February 19, 2016, the Court ended the stay concluding that Toll Brothers “had its opportunity to inspect and repair the defects noticed by Plaintiffs, but has chosen not to.”
On August 2, 2017, the homeowners amended their complaint to name Petra Geosciences as “Doe 101.” According to the homeowners, they did not become aware that Petra Geosciences was a potentially responsible party until April 13, 2017 when Toll Brothers produced discovery identifying Petra Geosciences as the geotechnical engineer. The homeowners served Petra Geosciences on August 9, 2017, three years and 38 days after the original complaint was filed.
Petra Geosciences answered the homeowner’s amended complaint on September 7, 2017. Nine months later, on June 19, 2018, Petra Geosciences filed a motion to dismiss claiming that by serving Petra Geosciences three years and 38 days after the original complaint was filed, the homeowners failed to comply with Code of Civil Procedure section 583.210 which provides that a “summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant.”
What happened next was interesting and even a bit eyebrow raising:
- On July 10, 2018, two weeks before the scheduled hearing on Petra Geosciences motion to dismiss, the parties were in court on unrelated matters when the trial court decided sua sponte (Latin for “on its own motion”) to advance the hearing on the motion to dismiss, and announced its intention to grant the motion.
- In response to comments made by the homeowners’ counsel that the hearing was not scheduled until two weeks later, the trial court responded, “I was told they are advanced to today, and whether you like it or not, I’m going to deal with them, and you can figure out what you’re going to with it.” According to the trial court, the case had “spun wildly out of control.” When asked by the homeowners’ counsel whether they could file their opposition that day, the trial court responded, “[t]he way it works is, file when you can. I’m not going to turn it down. I start reading. And when I get bored, stop reading. Put the good stuff up front.”
- At the conclusion of the hearing, the trial court stated, “[a]t this point, it will all be under submission. I have to go back and review this. And don’t be surprised if you there’s not much changed between what the minute order will say and what I already said, but if get open — that’s why you’re here. You’re here to get me to think about it.”
- Later that day, the homeowners’ counsel filed a 101-page opposition including exhibits. However, the trial court’s minute order, which was entered the following day on July 11, 2018, rather than stating that the court had taken the matter under submission as the court said that it would, stated that it was the trial court’s decision to grant Petra Geoscience’s motion to dismiss.
- After the trial court’s minute order was entered, the homeowners’ counsel filed a motion for reconsider on the ground that the trial court had not considered its 101-page opposition. The Court denied the motion for reconsideration without explanation and later entered a judgment of dismissal in favor of Petra.
Counsel for the homeowners appealed.
On appeal, the 4th District Court of Appeal noted that under Code of Civil Procedure section 583.210 even defendants identified as “Doe” defendants must be served within three years after an action is originally filed.
However, explained the Court of Appeal, the three year deadline is tolled under certain circumstances under Code of Civil Procedure section 583.240:
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.
(c) The validity of service was the subject of litigation by the parties.
(d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff’s control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff’s control for the purpose of this subdivision.
Under Code of Civil Procedure section 583.240, explained the Court of Appeal, “[i]t is self-evident that a party must be identified before it can be served”, that “[i]n many cases, formal discovery is the only reasonable means of identifying a party,” and that “[i]n such cases, if a stay prevents discovery, it also, as a practical matter, impedes (affects) service.”
However, the Court of Appeal was careful to make two points with respect to subdivision (b) of Code of Civil Procedure section 583.240.
First, explained the Court of Appeal, tolling is appropriate where discovery is “reasonably necessary” in order to determine the identity of a “Doe” defendant. This does not mean that discovery is “essential” in determining the identify of a “Doe” defendant. The Court of Appeal gave the following example:
For example, suppose plaintiffs could have identified Petra by reviewing documents in the building inspector’s office, but Petra was only identified in an obscure footnote. We would not necessarily expect plaintiffs to find that information as a matter of course, and thus formal discovery would be reasonably necessary to identify Petra, even though it may have been technically possible to do so without discovery. A plaintiff need not go to extraordinary lengths.
Second, explained the Court of Appeal, if a stay did not prohibit service, and if the homeowners had a practical means of identifying Petra Geosciences as a “Doe” defendant without formal discovery, then no tolling would apply.
Thus, explained the Court:
[T]he proper focus here is on whether the stay affected service as a practical matter by depriving plaintiffs of the only reasonable means of identifying Petra. 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.
However, the Court of Appeal remanded the case back to the trial court, holding that whether the trial court’s stay of the action practically impeded the homeowners from identifying Petra Geosciences as a “Doe” defendants was a decision for the trial court to make.
So, there you have it. In multi-party construction litigation cases, as most typically are, you need to name your “Doe” defendants within three years of filing your complaint, or be able to show that that you had practical ability to determine the identity of a “Doe” defendant within those three years.
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