Did the Stay Affect Service?

Steciw v. Petra Geosciences, Inc., No. G057375 (D4d3 Jul. 29, 2020)

Defendant here was originally sued as a doe. Almost three years into the case, Plaintiff discovered Defendant’s identity. Plaintiff subbed in the doe with Defendant. Ultimately, Defendant got served three years and 38 days after the complaint was filed. Defendant moved to dismiss under Code of Civil Procedure § 583.210(a), which requires service of summons within three years of the filing of a complaint. The trial court granted the motion. Plaintiff appealed.

The three year limit in 583.210 is subject to statutory tolling. One grounds is if “prosecution of the action or proceedings in the action was stayed and the stay affected service.” § 583.210(b). Here, the case was stayed for nine months pending some ADR. During that time, discovery was stayed. The Court of Appeal explains that service needs only to be “affected” not “prevented.” So the fact that the stay didn’t prevent Plaintiff from serving Defendant isn’t dispositive. Service could have been “affected,” if, for instance, the stay delayed discovery in which Plaintiff ultimately discovered Defendant’s true identity. 

But the record on appeal is unclear as to the nexus between discovery and Defendant’s identity. On one hand, if discovery was truly crucial or even important in learning the identity, the tolling would apply. But on the other, if this was something Plaintiff could readily have figured out informally, the delay in discovery would not have affected the practical ability to accomplish service. The trial court needs to figure that out on remand.

Reversed and remanded.