Motion-Secondary: Abel vs McCutchan, JR

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Edward McCutchan (SBN 119376)
SUNDERLAND | McCUTCHAN, LLP
1083 Vine Street, Suite 907
Healdsburg, California 95448
Telephone: (707) 433-0377

Facsimile: (707) 433-0379

Attorneys for Defendant
LENORA VERNE FUNG SUED AS DOE 9

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SONOMA

RICHARD ABEL, an individual, ) CASE NO. SCV-263456
)
Plaintiff, } DEFENDANT LENORA VERNE FUNG’S
MEMORANDUM OF POINTS AND
3 AUTHORITIES IN SUPPORT OF
VS. MOTION TO DISMISS RICHARD
) ABEL’S FIRST AMENDED COMPLAINT
B. EDWARD McCUTCHAN, JR. an } (CCP SECTION 583.210 et seq.)
individual; SUNDERLAND | McCUTCHAN, Date:
LLP, a general partnership; and DOES 1 3 Time: 3:00 p.m.
through 100, inclusive, ) Dept:
)
Defendants. 3
)
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STATEMENT OF THE PROCEEDINGS
Richard Abel (hereinafter “ABEL”), plaintiff in propria persona, filed this action on
November 2, 2018. (See accompanying request for judicial notice, item 1): ABEL named
moving party, Lenora Verne Fung as DOE 9 to this action on December 9, 2021. (See
accompanying request for judicial notice, item 2). Defendant, Lenora Verne Fung sued as DOE 9|
herein was served with the November 2, 2018 issued Summons, the November 18, 2020
Complaint, and other documents in this action on or about February 24, 2022. (See

accompanying declaration of Lenora Verne Fung).

 

 

 

DEFENDANT LENORA VERNE FUNG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS RICHARD ABEL’S FIRST AMENDED COMPLAINTAGAINST HIM (CCP SECTION 583.210 et seq.)
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From November 2, 2018 to December 9, 2021, more than three (3) years have elapsed,
specifically 1,133 days which equates to 3 years, 1 month and 7 days. From November 2, 2018
to February 24, 2022, even more than three (3) years have elapsed, specifically 1,211 days which|
equates to 3 years, 3 months, and 22 days. Undeniably Abel served defendant Fung well more
than three (3) years after this action was filed on November 2, 2018 with the summons, first
amended complaint and any other documents mandating that Fung’s motion to dismiss be
granted without leave to amend.

at
APPLICABLE LAW

California Code of Civil Procedure section 583.210 states:
(a) The summons and complaint shall be served upon 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.

(b) Proof of service of the summons shall be filed within 60 days after the time the
summons and complaint must be served upon a defendant. (Emphasis added).

California Code of Civil Procedure section 583.250 states:
(a) If service is not made in an action within the time prescribed in this article:

() The action shall not be further prosecuted and no further proceedings shall be held!
in the action.

(2) The action shall be dismissed by the court on its own motion or on motion of
any person interested in the action, whether named as a party or not, after
notice to the parties. , .

(b) The requirements of this article are mandatory and are not subject to
extension, excuse, or exception as expressly provided by statute. (Emphasis
added).

Weatherby v. Van Diest (1991) 233 Cal. App. 3d 506 disposes of ABEL’s action in

Fung’s favor. The facts of this appellate case are as follows: Plaintiffs action for personal

injuries was filed December 10, 1984. The complaint named only Does | to 20 as defendants.

 

 

 

DEFENDANT LENORA VERNE FUNG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS RICHARD ABEL’S FIRST AMENDED COMPLAINTAGAINST HIM (CCP SECTION 583.210 et seq.)
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On September 28, 1987, plaintiff filed an amendment to his complaint, identifying Doe 9 as
“Anthony Van Diest Contracting.”

On October 14, 1987, plaintiff filed another amendment to his complaint identifying Doe
10 as “Anthony Van Diest, individually, as dba Anthony Van Diest Contracting.” Defendant
then served as Doe 10 on October 23, 1987. However, the summons was not returned to the
court until more than a year later, i.e., on October 28, 1988. The return of the summons to the
issuing court was accomplished 3 years and 10 months after the summons was issued.

Defendant Van Diest moved, under CCP section 583.250, for an order of dismissal for
failure to comply with CCP section 583.210. The trial court granted the motion to dismiss.
Plaintiff appealed. The appellate court affirmed the trial court’s grant of defendant Van Diest’s
dismissal because more than 3 years and 60 days had passed since the complaint in the action
was filed and the issued summons was returned to the issuing court.

Where a summons has not been served and returned and where defendant has made no
general appearance within a three-year period, dismissal provisions of this section are mandatory
and jurisdictional. (Slaybaugh v. Superior Court in and for Santa Clara County (1971) 70 Cal.
App. 3d 216, 221).

Courts are strictly to construe the three-year service requirement excuse of impossibility,
impracticability, or futility in light of the need to give a defendant adequate notice of the action
so that the defendant can take necessary steps to preserve evidence. (State ex. Rel. Edelweiss
Fund, LLC v. JP Morgan Chase & Co. (2020) 58 Cal. App. 5" 1113, 1120).

In Graf v. Gaslight (1990) 225 Cal. App. 3d 291, the appellate court held that substantial
evidence had that there has been no service of process within the three-year period of plaintiff's

filing of the complaint as required by CCP section 583.210 et. seq. and that the lawsuit was

 

 

 

DEFENDANT LENORA VERNE FUNG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS RICHARD ABEL’S FIRST AMENDED COMPLAINTAGAINST HIM (CCP SECTION 583.210 et seq.)
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required to be dismissed where the filing of the proof of service was not accomplished until after
the three-year period for service had expired.

ABEL filed this action on November 2, 2018. (See accompanying request for judicial
notice). Defendant Fung was named as DOE 9 by ABEL in this action on December 9, 2021.
(See accompanying request for judicial notice). From November 2, 2018 to December 9, 2021,
more than three (3) years have elapsed, specifically 1,133 days which equates to 3 years, 1
month and 7 days.

Defendant Fung was served with the November 2, 2018 issued Summons and the First
Amended Complaint on or about February 24, 2022. (See accompanying Declaration of Fung).
From November 2, 2018 to February 24, 2022, more than three (3) years have elapsed,
specifically 1,211 days which equates to 3 years, 3 months, and 22 days.

Defendant Fung’s motion under CCP sections 583.210 and 583.250 and the cited case
law to dismiss ABEL’s naming of her as DOE 9 in this action must be granted with prejudice
since Defendant Fung was named as a defendant in this action by Abel well after the passage of
three (3) years but was also served with process on February 24, 2022 which is 3 years, 3
months and 22 days after Abel filed this action on November 2, 2018.

Under Slaybaugh v. Superior Court in and for Santa Clara County supra at 221, this court
does not have jurisdiction to hear ABEL’s claims against defendant, Fung, and her motion to
dismiss under CCP section 583.210 et seq., and the cited case law must be granted as a matter of
law with prejudice.

mm
CONCLUSION

ABEL’s December 9, 2021 naming of Lenora Verne Fung as DOE 9 in this action is well

beyond the three (3) years statute to serve her with the summons and complaint in this action as

 

 

 

DEFENDANT LENORA VERNE FUNG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS RICHARD ABEL’S FIRST AMENDED COMPLAINTAGAINST HIM (CCP SECTION 583.210 et seq.)
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stated herein. Lenora Verne Fung’s motion to be dismissed as defendant DOE 9 herein must be
granted with prejudice under CCP section 583.250 and Weatherby v. Van Diest, supra and other
cited case law herein.

This court, under CCP sections 128 and 583.250, should issue an OSC re Dismissal to
ABEL as to DOES 6 through 16 in this action in that if refuses to dismiss the DOES named in
his December 9, 2021 DOE filing, this court may infer that he is a vexatious litigant under statute}

and case law.

Date: March o- }. 2022 SUNDERLAND | McCUTCHAN, LLP

   

Attorneys for Defend
LENORA VERNE FUNG AS DOE 9

 

 

 

DEFENDANT LENORA VERNE FUNG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS RICHARD ABEL’S FIRST AMENDED COMPLAINTAGAINST HIM (CCP SECTION 583.210 et seq.)
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PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF SONOMA
I am employed in the County of Sonoma, State of California. | am over the age of 18 and
not a party to the within action; my present address is: 1083 Vine Street, Suite 907, Healdsburg]
California 95448.
On March , 2022, I served the foregoing documents described as DEFENDANT

LENORA VERNE FUNG’S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO DISMISS RICHARD ABEL’S FIRST AMENDED
COMPLAINT AGAINST HIM (CCP SECTION 583.210 et seq.) on the parties by placing a
true copy thereof enclosed in a sealed envelope addressed as follows:

SEE ATTACHED SERVICE LIST
_X_ By Regular U.S. Mail. The documents were placed for collection and mailing following
ordinary business practice for deposit in the United States Postal Service in a sealed envelope with
postage thereon fully prepaid, addressed as stated above.

By personal service. I caused each such envelope to be delivered by hand to the addressee(s
as stated above.

By facsimile transmitted from (707) 433-0379. The document transmission was reported ag
complete and without error.
_X__By email or electronic transmission. | caused the document to be sent to the persons at the
email addresses listed below. I did not receive within a reasonable time after the transmission am

electronic message or other indication that the transmission was unsuccessful.

I declare under penalty of perjury under the laws of the State of ae that the foregoing

is true and correct and that this declaration was executed on Mgr 22, at Healdsburg.

   

  

California.

 

 

 

 

DEFENDANT LENORA VERNE FUNG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS RICHARD ABEL’S FIRST AMENDED COMPLAINTAGAINST HIM (CCP SECTION 583.210 et seq.)
610

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Abel v. McCutchan, et al.
Sonoma County Superior Court Case No. SCV-263456

 

Plaintiff in Pro Per: Richard Abel

Richard Abel BY FIRST CLASS MAIL - ONLY
707 Hahman Drive, #9301
Santa Rosa, CA 95405-9301

Tel: (707) 340-3894
E-Mail: pererel@gmail.com

Attorneys for Defendants: Sunderland | McCutchan, Inc.; Sunderland | McCutchan, LLP,
B. Edward McCutchan, Jr.

Joseph S. Picchi, Esq. BY EMAIL - ONLY
Aaron T. Schultz, Esq.

Alexander Promm, Esq.

Galloway, Lucchese, Everson & Picchi

A Professional Corporation

2300 Contra Costa Blvd., Suite 350

Pleasant Hill, CA 94523-2398

Tel. No. (925) 930-9090
Fax No. (925) 930-9035

E-Mail: aschultz@glattys.com

 

 

 

DEFENDANT LENORA VERNE FUNG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS RICHARD ABEL’S FIRST AMENDED COMPLAINTAGAINST HIM (CCP SECTION 583.210 et seq.)
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