Filed 5/28/15 Keegan v. Pratt CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


MARIAN K. KEEGAN,

     Plaintiff and Appellant,                                          G049659

         v.                                                            (Super. Ct. No. 30-2010-00338176)

SHANNON PRATT,                                                         OPINION

     Defendant and Respondent.



                   Appeal from orders of the Superior Court of Orange County, David R.
Chaffee, Judge. Affirmed.
                   Marian K. Keegan, in pro per; Charles G. Kinney (now involuntarily
inactive) for Plaintiff and Appellant.
                   Pardes & Stein and Fred S. Pardes for Defendant and Respondent.
                                          *                  *                  *




                   Plaintiff and appellant Marian Keegan contends the court abused its
discretion in ruling on a notice of related case and in granting a motion to quash filed by
respondent Shannon Pratt, whom Keegan served as a Doe defendant more than three
years after the lawsuit was filed. With regard to her first point, Keegan has provided an
inadequate record for review and a lack of pertinent legal argument. With regard to her
second point, Keegan failed to timely serve her complaint. (Code Civ. Proc., §§ 583.210,
subd. (a), 583.250, subd. (a).) We affirm.
                                             I
                                          FACTS
               Keegan filed a complaint against Kymberli Serafino, Hugo Salgado, O.C.
Restaurant Upholstery, and Does one through 50, on January 22, 2010. (Keegan v.
Serafino (Super. Ct. Orange County, No. 30-2010-00338176) (“Keegan”).) Keegan
alleged that she owned a vinyl repair business known as Invisible Vinyl Repair. She had
employed Serafino as her office manager and Salgado as a craftsman. However, Serafino
and Salgado left their employment in January 2010.
               According to the complaint, Serafino and Salgado opened a competing
business, under the name O.C. Restaurant Upholstery. They allegedly stole Keegan’s
customers, floor plans, fabric samples, tools of the trade, and certain bank funds. Keegan
asserted numerous causes of action against them, and she filed a first amended complaint
in May 2010.
               A bench trial was held before Judge Chaffee on January 18, 2011. None of
the defendants appeared. On February 22, 2011, the court entered an amended judgment
against Salgado and O.C. Restaurant Upholstery, but not Serafino, who had filed for
bankruptcy. It awarded $599,000 to Keegan.
               Keegan represents that the court granted a new trial motion for Salgado,
who then had a jury trial. She further represents that neither she nor Salgado “prevailed
in that.” Keegan provides no record references to support her description of events.
               On September 14, 2012, Keegan filed a notice of related case. She said her

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case, Keegan, was related to Serafino v. Keegan (Super. Ct. Orange County, No. 30-
2012-00581734) (“Serafino”).
              On January 15, 2013, Keegan filed an amendment to complaint to add Pratt
as a Doe defendant. Pratt thereafter filed a motion to quash, on several grounds. The
court granted the motion.
              Keegan appeals from the order granting the motion to quash and from a
“refusal” by the court to relate the Keegan and Serafino cases.
                                              II
                                       DISCUSSION
A. Ruling on Notice of Related Case:
              Keegan begins by citing a copy of a minute order, apparently filed in
Serafino. It is attached to her opening brief but does not appear to be contained in the
record on appeal. Disregarding the significance of her failure to include the challenged
minute order in the record, we observe it provides in pertinent part: “The Honorable
David Chaffee read and considered the Notice of Related Case and finds that [Serafino]
and [Keegan] are not related. [¶] [Keegan] has previously gone to trial.” For reasons we
shall explain, Keegan has failed to show the court abused its discretion in ruling as it did.
              California Rules of Court, rule 3.300(b) requires a party in a civil action to
serve and file a notice of related case under certain circumstances. Rule 3.300(a)
provides: “A pending civil case is related to another pending civil case, or to a civil case
that was dismissed with or without prejudice, or to a civil case that was disposed of by
judgment, if the cases: [¶] (1) Involve the same parties and are based on the same or
similar claims; [¶] (2) Arise from the same or substantially identical transactions,
incidents, or events requiring the determination of the same or substantially identical
questions of law or fact; [¶] (3) Involve claims against, title to, possession of, or damages


to the same property; or [¶] (4) Are likely for other reasons to require substantial

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duplication of judicial resources if heard by different judges.”
              California Rules of Court, rule 3.300(h) gives the court the discretion to
“order that the cases . . . be related and [to] assign them to a single judge or department”
if the cases have been filed in one superior court. Here, Keegan argues the court abused
its discretion in failing to relate the Keegan and Serafino cases. However, she fails to
address the requirements of rule 3.300(a) or to cite any portion of the record to support
her position. She has not met her burden to show error. (R. A. Stuchbery & Others
Syndicate 1096 v. Redland Ins. Co. (2007) 154 Cal.App.4th 796, 801-802, fn. 3 [point
unsupported by cognizable legal argument abandoned]; accord, G.R. v. Intelligator
(2010) 185 Cal.App.4th 606, 619; Roden v. AmerisourceBergen Corp. (2010) 186
Cal.App.4th 620, 634 [point unsupported by record references waived].)


B. Motion to Quash:
              (1) Background—
              In her January 15, 2013 amendment to complaint to add a Doe defendant,
Keegan stated only that she had previously been “ignorant of the true name of a
defendant,” and had “discovered the true name of said defendant to be ‘Shannon Pratt’.”
She offered no further information and did not amend her complaint in any way other
than to add the Doe defendant. Keegan served Pratt with copies of the summons,
complaint and Doe amendment on September 23, 2013.
              In her motion, Pratt argued Keegan clearly had been dilatory in her efforts
to add her to the lawsuit. Pratt emphasized that a December 11, 2009 business license
application, showing her to be an owner of O.C. Restaurant Upholstery, was a public
record available to Keegan years before the May 2012 trial (an apparent reference to a
trial of Keegan’s claims against Salgado). Furthermore, Pratt showed that Keegan clearly
knew about her more than a year before she served her with the summons, complaint, and
Doe amendment. She contended that lack of diligence alone was a sufficient ground for

                                              4
granting her motion.
                 In addition, Pratt argued that inasmuch as Keegan alleged the theft took
place before January 4, 2010, but she did not add Pratt as a Doe defendant until January
15, 2013, Keegan’s claim was barred by the three-year statute of limitations for
conversion. (Code Civ. Proc., § 338, subd. (c).) Pratt further argued that, given the 2012
verdict in the case, Keegan’s claims against Pratt were barred by the doctrines of res
judicata and collateral estoppel.
                 In her opposition to Pratt’s motion, Keegan claimed she did not learn about
the December 11, 2009 business license application, and Pratt’s involvement in O.C.
Restaurant Upholstery, until she subpoenaed the business license records for trial and the
records were produced on January 19, 2011. She also claimed she had difficulty in
serving Pratt.
                 Keegan emphasized that the first trial, in January 2011, was as to O.C.
Restaurant Upholstery and the second trial, in 2012, was as to Salgado only. She asserted
that the default judgment taken against O.C. Restaurant Upholstery in February 2011 was
res judicata as against Pratt.
                 Finally, Keegan claimed that, having only learned of Pratt’s involvement
with O.C. Restaurant Upholstery on January 19, 2011, naming her as a Doe defendant
within three years, on January 15, 2013, was proper under Code of Civil Procedure
sections 338, subdivision (d) [three-year statute of limitations for fraud] and 583.420,
subdivision (a)(1) [discretionary dismissal for lack of service within two years of
commencement of action].
                 The court issued a three-page minute order addressing in detail the various
issues the parties raised, including without limitation, undue delay, the statute of
limitations, res judicata and collateral estoppel. It granted Pratt’s motion on several
grounds. It stated the “purported Doe amendment [was] defective” as “(i) barred or
subject to dismissal under the statute of limitations; or (ii) subject to dismissal because

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summons was not timely served; or (iii) improper because Pratt may not be added to the
existing judgment without notice.”
              (2) Nature of Motion—
              On appeal, Keegan first argues that the court erred in considering issues
other than personal jurisdiction. She quotes Kroopf v. Guffey (1986) 183 Cal.App.3d
1351, which provides: “[A] motion to quash service is strictly limited to the question of
jurisdiction over the defendant. [Citations.] Thus a motion to quash does not serve the
function of a demurrer as to whether the complaint states a cause of action.” (Id. at p.
1360.)
              We agree that in “[u]sing the motion to quash service of summons as a
vehicle, [Pratt] attempted to place issues before the trial court which were irrelevant to a
consideration of the motion.” (Kroopf v. Guffey, supra, 183 Cal.App.3d at p. 1360.)
However, that does not mean her motion was not well taken on any ground or that the
court erred in granting it.
              Code of Civil Procedure section 418.10, subdivision (a) provides: “A
defendant . . . may serve and file a notice of motion for one or more of the following
purposes: [¶] (1) To quash service of summons on the ground of lack of jurisdiction of
the court over him or her. [¶] (2) To stay or dismiss the action on the ground of
inconvenient forum. [¶] (3) To dismiss the action pursuant to the applicable provisions of
Chapter 1.5 (commencing with Section 583.110) of Title 8.” Code of Civil Procedure
section 583.110 et seq. has to do with dismissal for delay in prosecution. Delay in
prosecution is one of the grounds Pratt asserted in her motion. It is also one of the
grounds upon which the court relied in making its decision, and properly so.
              (3) Delay in Prosecution—
              Code of Civil Procedure section 583.130 provides in pertinent part: “It is
the policy of the state that a plaintiff shall proceed with reasonable diligence in the
prosecution of an action . . . .” Section 583.210, subdivision (a) provides: “The

                                              6
summons and complaint shall be served upon a 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.”
              Section 583.250 further provides: “(a) If service is not made in an action
within the time prescribed in this article: [¶] (1) 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 except as expressly provided by statute.”
              Here, the amendment adding Pratt as a Doe defendant added no new
allegations whatsoever and thus was clearly based on the same operative facts as the first
amended complaint. That being the case, the filing of the Doe amendment on January 15,
2013 related back to the filing of the first amended complaint on May 3, 2010.
(Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 154.) However, the Doe
amendment was not served on Pratt until September 23, 2013—more than three years
after the filing of the first amended complaint. Consequently, it was not timely served.
(Code Civ. Proc., § 583.210, subd. (a).)
              The court observed that if Keegan somehow argued the relation-back
doctrine should not apply, and the court construed her Doe amendment to be timely
served, then she would have a statute of limitations problem. It explained that the statute
of limitations for conversion (Code Civ. Proc., § 338, subd. (c)) ran from the date of the
alleged conversion in December 2009, so the filing of a complaint on January 15, 2003
would be untimely.
              We would agree with this analysis but for two things. First, conversion was
not the only cause of action Keegan asserted and both parties failed to address the
applicable statute of limitations for her other causes of action, notably unfair competition.

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Second, and more importantly, Keegan has no basis to argue that the relation-back
doctrine does not apply. Indeed, in her reply brief, Keegan plainly states, “It is incorrect
to say KEEGAN’s claims do not relate back since the Barrington case says these claims
do relate back.” Exactly.
              The court was correct that the action should be dismissed as to Pratt for
failure to timely serve her. (Code Civ. Proc., § 583.210, subd. (a); § 583.250, subd. (a).)
While Keegan baldly asserts that Pratt “was hard to find,” she does not indicate what
efforts she made to find Pratt. That being the case we do not apply Code of Civil
Procedure section 583.240 to extend the time for service.1
              The court was also correct that it could, on its own motion, dismiss the
action as to Pratt pursuant to Code of Civil Procedure section 583.250, subdivision (a)(2).
Keegan is wrong in claiming the court erred in considering the application of the statute.
Not only does the statute, by its own terms, permit the court to do so, but Pratt’s first
argument in her motion was that Keegan was dilatory in serving her, even though Pratt
omitted to cite the statute in question.
              Inasmuch as Keegan failed to timely serve Pratt, it is unnecessary for the
court to consider the parties’ arguments about res judicata and collateral estoppel.


C. Stay Request:
              Keegan also requests this court to stay the Serafino case because
“SERAFINO filed a counter-claim in federal bankruptcy court . . . based on the same
facts with the same parties.” Keegan fails to support her assertions with citations to the

1             Code of Civil Procedure section 583.240 provides: “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: [¶] . . . [¶] (d) Service . . . 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.”


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record. Consequently, her arguments fail. (Roden v. AmerisourceBergen Corp., supra,
186 Cal.App.4th at p. 634.) The Serafino case is not before us in any event.


D. Sanctions Request:
             At oral argument, counsel for Pratt requested that this court award sanctions
against Keegan and Kinney. We do not consider this request inasmuch as it does not
comply with California Rules of Court, rule 8.54.
                                           III
                                     DISPOSITION
             The orders are affirmed. Pratt shall recover her costs on appeal.




                                                 MOORE, ACTING P. J.

WE CONCUR:



ARONSON, J.



THOMPSON, J.




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