(Super. Ct. No. 07AS04796)
The opinion of the court was delivered by: Nicholson , Acting P. J.
Barth v. Amer. River HealthPro Credit Union CA3
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff Roberta L. Barth appeals from a judgment dismissing with prejudice her action against defendant American River HealthPro Credit Union and unnamed "Doe" defendants based on Barth's delay in prosecuting the action (Code Civ. Proc., § 583.410 et seq.).*fn1 On appeal, Barth contends the trial court lacked authority to dismiss the action with prejudice, and abused its discretion in granting the motion to dismiss because she made a credible showing of excuse for failing to serve the complaint until nearly three years had passed, because American River HealthPro Credit Union was not prejudiced. The first contention has merit: under these circumstances, the applicable statutes only allow a dismissal "without prejudice." (§§ 581, subd. (b)(4), 583.410.) We reverse the judgment and modify the order of dismissal.
On October 22, 2007, Barth (in pro se) filed a complaint alleging causes of action (among others) for fraud and deceit, breach of contract, misrepresentation, unfair business practice, abuse of process, constructive trust, and negligence. All of Barth's claims arise from American River HealthPro Credit Union's alleged wrongful foreclosure of her Fair Oaks home.
In April 2008, the trial court sent Barth a notice of case management conference and order to appear. Barth responded by letter that, until recently, she lacked funds necessary to proceed with the litigation, but now "I will serve the defendants and determine what I need to file with the court to get this case on track . . . ."
In October 2008, attorney Ronald L. Melluish filed a case management statement on Barth's behalf. Melluish reported that the defendant had not been served because "pro per plaintiff unable to serve" and he had "just subbed in. The complaint needs to be amended. I took the case because this plaintiff does make out a case for a very wrongful foreclosure. [¶] I would ask the court's indulgence in setting the matter over at least 60 days to another [case management conference], during which time I might complete the amended comp[laint] and send it out for service."
American River HealthPro Credit Union merged into SAFE Credit Union (SAFE) on July 1, 2009; as a result, American River HealthPro Credit Union ceased to exist.
The complaint was never amended. Barth served American River HealthPro Credit Union with the original complaint and an amended summons on October 20, 2010.
SAFE moved to dismiss the complaint with prejudice, on the ground Barth failed to serve defendant within two years after the action was commenced (§ 583.420, subd. (a)(1)), and failed to bring the case to trial within two years of filing it (§ 583.420, subd. (a)(2)(B)). It argued that Barth had done nothing to prosecute her action, in that she has propounded no discovery, noticed no depositions, and filed "no papers of any kind" for the past 36 months. Barth has no reasonable excuse for her delay, SAFE argued, and it would be unduly burdensome now for SAFE to locate employees of American River Health Pro Credit Union and, in any event, memories will have faded in the interim.
Barth filed a memorandum in opposition to the motion to dismiss, arguing she had a reasonable excuse for delay in prosecuting her action in 2009 and 2010: she could not afford to pay counsel. SAFE will suffer no prejudice from the delay or the ensuing merger, Barth responded, because this case is "document heavy," not "overly dependent on witnesses," and, in any event, some former American River HealthPro Credit Union employees are still employed by SAFE.
In support of her opposition, Barth submitted a belated declaration in which she averred defendant was aware of the action before service because she made many attempts at settlement before filing. Barth also suggested she had reasonable excuses for her failure to prosecute: "throughout the last year and prior" she was occupied with caring for two ill brothers; between April and December 2009 ...