Filed 12/30/13 Baugher v. Harris CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                     DIVISION 3


FRED BAUGHER,
          Plaintiff and Appellant,
                                                                     A137716
v.
TAMMY HARRIS,                                                        (Alameda County
                                                                     Super. Ct. No. RG09429206)
          Defendant and Respondent.


          Plaintiff Fred Baugher appeals from an order dismissing defendant Tammy Harris from
his medical malpractice complaint under Code of Civil Procedure section 583.250.1 Because
substantial evidence supports the trial court’s decision to dismiss, we affirm.
                                                  BACKGROUND
          On January 5, 2009, Baugher filed a complaint against defendants Alta Bates Summit
Medical Center (Alta Bates) and Tammy Harris seeking damages for medical malpractice for a
March 2008 incident that occurred when Harris was temporarily working there as a nurse. On
October 27, 2009, Baugher filed a case management statement, which indicated that Harris had
not been served because she “has not yet been found.”
          Baugher claimed he was having trouble locating Harris because she was no longer
working in California and “Tammy Harris” was a common name among nurses and “some look
alike.” On November 5, 2009, the court imposed sanctions of $500 against Baugher for failing
to diligently serve Harris with the complaint, but stayed its order provided that by May 13, 2010,
Baugher would serve Harris, dismiss her from the complaint, or request an extension of time.


1
    All further statutory references are to the Code of Civil Procedure unless otherwise designated.


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On or about December 8, 2009, Baugher claimed he served a nurse in Kentucky who was also
named Tammy Harris. She was later determined to be the wrong nurse and dismissed from the
case on December 24, 2009.
       On February 25, 2010, Baugher filed proof of service on Harris that included a process
server's affidavit of substitute service and a declaration from Baugher’s attorney attesting to its
authenticity. The process server left the summons and complaint with Renee Tillman, described
as Harris’s supervisor, at Advanced Clinical Employment Staffing, LLC (ACES) in Oneonta,
Alabama. ACES confirmed that Harris was a travel nurse and former employee who was no
longer working for ACES when service was left with Tillman. ACES also stated that its attorney
contacted Baugher’s counsel and informed him that Harris no longer worked at ACES and it was
not authorized to accept service on her behalf.
       Baugher claimed that he continued his efforts to identify and locate Harris “using a
variety of discovery methods, including the internet.” He says he ultimately learned Harris’s
identity and address in July 2012 during discovery, after Alta Bates and ACES were ordered to
produce a copy of Harris’s temporary nursing license.
       On July 26, 2012, Baugher personally served Harris in Zebulon, Georgia. Harris moved
to dismiss for Baugher's failure to serve her within three years of filing the complaint. In
opposition to Harris’s motion, Baugher made three arguments. He argued the time to return
service should run from late 2009 instead of the original filing date because he amended the
complaint with Harris’s correct name late in 2009; for a time Harris was not amenable to service;
and service was impossible, impractical, or futile.
       The court granted Harris’s motion and dismissed her from the complaint. The trial court
concluded that Harris had not been served until July 26, 2012, more than three years from the
date Baugher's complaint was filed, and dismissal was mandatory under section 583.250. The
court also concluded that Baugher “ha[d] not shown that he exercised reasonable diligence in his
efforts to locate [Harris] in order to have her served,” that he “merely conducted a search for
[Harris] via Internet, and then followed up with written discovery” to Alta Bates and ACES, and
that he thus failed to satisfy any of the statutory exceptions to mandatory dismissal. Baugher
appeals.




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                                          DISCUSSION
A.     Standard of Review
       When a ruling challenged on appeal depends on resolution of disputed facts, we review it
for substantial evidence. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1136-1137;
Bowers v. Bernards (1984) 150 Cal.App.3d 870, 872-873 (Bowers).) Our review is limited to
determining only whether there is substantial evidence to support the trial court’s factual
determination, based on the entire appellate record. (Bowers, supra, at pp. 873-874.) If there is
substantial evidence to support the trial court’s determination, the judgment will not be disturbed
simply because contradicting evidence is susceptible to contrary conclusions. (Id. at p. 872.)
The trial court’s judgment or order is presumed to be correct. (Null v. City of Los Angeles (1988)
206 Cal.App.3d 1528, 1532.) The burden is on the appellant to articulate a legally sound
argument and furnish the court with an adequate appellate record that demonstrates the trial
court’s alleged error. (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865.)
       Baugher incorrectly argues the standard of review here should be either de novo or abuse
of discretion. We apply the substantial evidence standard because there are disputed facts about
the service of process, there is no question of law, and the trial court had no occasion to exercise
its discretion to dismiss because of the mandatory stricture of section 583.250.
B.     Mandatory Dismissal Under Section 583.250
       In civil actions, section 583.210 provides that “(a) [t]he summons and complaint shall be
served upon a defendant within three years after” the complaint is filed and “(b) [p]roof of
service of the summons shall be filed within 60 days” after the defendant is served. Section
583.250, subdivision (a) requires dismissal of an action if service is not made within the time
prescribed by statute. Subdivision (b) clarifies that dismissal is mandatory and “not subject to
extension, excuse, or exception except as expressly provided by statute.” This mandatory
dismissal is intended to “promote trial before evidence is lost or destroyed, protect defendants
from the annoyance of actions that remain undecided indefinitely, and assist the courts in
clearing crowded calendars.” (Shipley v. Sugita (1996) 50 Cal.App.4th 320, 323 (Shipley).)
       Baugher argues that he served Harris within the three-year requirement of section
583.210 by effectuating substitute service via her supervisor at ACES on February 25, 2010
(hereafter the 2010 substitute service). This argument fails for two reasons. The record does not
demonstrate that Baugher asserted the possible validity of the substitute service in opposition to



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Harris’s motion to dismiss or that the trial court considered it.2 As there is no indication in the
record that he raised this factual issue before the trial court, Baugher has forfeited the issue on
appeal. (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501.) Moreover, the
substitute service was not valid.
       Section 415.20, subdivision (b), provides that “[i]f a copy of the summons and complaint
cannot with reasonable diligence be personally delivered . . . a summons may be served by
leaving a copy of the summons and complaint at the person’s . . . usual place of business . . . in
the presence of . . . a person apparently in charge of his or her . . . place of business.” Because
personal service is preferred to substitute service, the party attempting service must show “that
the summons and complaint ‘cannot with reasonable diligence be personally delivered’ to the
individual defendant.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383,
389 (Zara).) Although the term “reasonable diligence” defies a bright-line rule or definition,
parties effecting service must provide some explanation for their failure to effect personal
service. (Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 801.)
       Filing a proof of service according to statutory requirements creates a rebuttable
evidentiary presumption that the service was proper, “but it may be impeached and the lack of
proper service shown by contradictory evidence.” (Dill v. Berquist Construction Co. (1994) 24
Cal.App.4th 1426, 1447.) Although Baugher filed such a proof of substitute service on February
25, 2010, the declaration filed by Harris's attorney on August 27, 2012 demonstrated that
Baugher was advised at the time of the 2010 substitute service that Harris was not employed by
ACES and that the service was invalid. The record does not reflect that Baugher provided any
factual showing to contradict counsel's declaration.
       Nonetheless, Baugher argues that his substitute service on Harris satisfies section
583.210. His conclusory argument is unsupported with legal authority. Instead, he relies on the
discredited proof of service and argues that Harris neither objected to service nor moved to
quash. However, "while a motion to quash is the procedure usually employed to challenge the


2
  Baugher’s only reference to the substitute service in his opposition was in the background
section: “ACES continued to hide the true name and address of the correct nurse (e.g. refused to
accept service on ‘HARRIS’ in 2010),” which was insufficient for purposes of preserving the
issue on appeal. Also supporting our determination that the adequacy of the substitute service
was not raised by Baugher is the fact that the trial court did not address it in its ruling.


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validity of service, the same issue is raised by a motion to dismiss under section 583.210." (Dill
v. Berquist Construction Co., supra, 24 Cal.App.4th at p. 1433.)
       Baugher also failed to demonstrate that other requirements for substitute service were
fulfilled. Section 415.20 requires that a plaintiff demonstrate reasonable diligence in attempting
personal service. (Zara, supra, 199 Cal.App.4th at p. 389.) Reasonable diligence may include
two or three attempts at personal service (Bein v. Brechtel-Jochim Group, Inc. (1992) 6
Cal.App.4th 1387, 1391-1392), obtaining a forwarding postal address from the U.S. Postal
Service and leaving the summons with a proper agent at that address (Ellard v. Conway (2001)
94 Cal.App.4th 540, 547), or any other method “reasonably calculated to provide [the defendant]
with actual notice of the action.” (Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392.)
Baugher has offered no explanation or analysis to show that any previous efforts to effectuate
service on Harris met the standard of reasonable diligence. Likewise, he has failed to show how
those previous efforts were reasonably calculated to give Harris notice of the action as required
by section 415.20.
       In oral argument before this court, Baugher for the first time argued that Harris's
counsel's declaration that contested the validity of the 2010 service was insufficient because it
was based on hearsay and facts outside the scope of the lawyer's personal knowledge. He relies
upon Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488(Cruz), as authority for the
proposition that a declaration seeking to rebut the presumption of effective service must be based
on personal knowledge. But Cruz says no such thing. The issue in Cruz was whether service
had been effected upon a non-resident corporation by mailing to its designated agent for service
of process. Although the court discusses at length varying circumstances that can arise when
service is attempted on a corporate defendant through an agent, Cruz does not hold that the
presumption of effective service may only be rebutted by declarations based upon personal
knowledge. Moreover, if Baugher wanted to contest the sufficiency of counsel's declaration to
rebut the presumption, he should have objected to its consideration by the trial court. He did not.
       As an alternative, Baugher cites Gilmore v. Lick Fish & Poultry, Inc. (1968) 265
Cal.App.2d 106, 109-115 (Gilmore), to argue that the three-year period to serve the summons
under section 583.210 was tolled by his amending the complaint on March 15, 2012 to add
Harris’s middle initial “D.” Gilmore is inapposite. Gilmore addressed the relation back of an
amendment for statute of limitations purposes when the actual name of a defendant is substituted



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for a fictitious one. (Id. at p. 115.) Gilmore provides no authority for Baugher’s argument that
the amendment to add Harris’s middle initial extended the time to return service under sections
583.240 and 583.250.
       Notwithstanding forfeiture of the issue on appeal, Baugher has failed to demonstrate the
2010 substitute service was proper or that he returned the summons within the allotted time.
There was substantial evidence to support the trial court’s determination that Harris was not
served within the time required by section 583.210.
C.     Exceptions to Mandatory Dismissal Under Section 584.240
       Baugher also argues that if he failed to serve Harris within three years, his failure should
be excused under two exceptions listed in section 584.240 that toll the three-year period. He
argues Harris was not “amenable to the process of the court.” Alternatively, he argues
effectuating service was “impossible, impractical, or futile due to causes beyond” Baugher’s
control. We disagree.
       Section 583.240 provides four circumstances that toll the computation of time under
section 583.210. However, due to public policy concerns over delays in bringing cases to trial,
the provisions of section 583.240 are “construed strictly against the plaintiff.” (Shipley, supra, 50
Cal.App.4th at p. 326; Williams v. Los Angeles Unified School Dist. (1994) 23 Cal.App.4th 84,
102 (Williams).) Section 583.240, subdivision (a), tolls the computation period during times the
“defendant was not amenable to the process of the court.” But whether a defendant is “amenable
to process” examines the court’s authority to exercise personal jurisdiction, not the defendant’s
“reasonable availability, as a practical matter, for service of process.” (Watts v. Crawford (1995)
10 Cal.4th 743, 758.)
       Baugher argues that Harris was not amenable to the process of the court merely because
she was “a citizen of Georgia (not California), and only here for [work at Alta Bates in 2008].”
There are two problems with his argument. First, Baugher has not cited to any evidentiary basis
in the record to conclusively establish either Harris's citizenship or the time when she worked in
the state of California. Other than asserting that Harris was served at an address in Zebulon,
Georgia, he provides no factual basis in the record to show her residency. The burden is on
Baugher to provide an adequate appellate record, and his failure to do so requires that we resolve
the issue against him. (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362 (Oliveira).) The
second problem with Baugher's argument is that he does not explain how Harris’s alleged



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citizenship or specific past presence in California is legally significant to the court’s authority to
exercise personal jurisdiction over her. In other words, Baugher presents no legal analysis to
support his contention that Harris was not amenable to service. It is not our role to construct a
legal theory for Baugher. (Morgan v. Wet Seal, Inc. (2012) 210 Cal.App.4th 1341, 1369.)
Therefore, we conclude that Baugher has failed show Harris was not amenable to the process of
the court.
       Baugher also claims under section 583.240, subdivision (d), that service on Harris was
“impossible, impractical, or futile due to causes beyond” his control. But subdivision (d) clearly
states that “[f]ailure to discover relevant facts or evidence is not a cause beyond the plaintiff’s
control . . . .” In order for a plaintiff to avail himself of this exception, he must demonstrate (1)
his diligent efforts to serve process on a defendant and that (2) circumstances beyond his control
prevented him from doing so. Courts have declined to apply subdivision (d) where the
impossibility, impracticality, or futility of effectuating service was due to the plaintiff’s
preferences, such as the chosen method of effectuating service. (Shipley, supra, 50 Cal.App.4th
at p. 326 [attorney’s misstatements do not excuse failure to comply with sections 583.210 and
583.250]; Bishop v. Silva (1991) 234 Cal.App.3d 1317, 1321-1322 [failure to timely return
process resulted from difficulties with process server who was selected and directed by
plaintiff’s attorney].) Because effectuating service is generally considered within a plaintiff’s
control, trial courts must strictly construe the statute against the plaintiff. (Williams, supra, 23
Cal.App.4th at p. 102.)
       Baugher says the identity and address for Harris were “actively hidden” by ACES and
Alta Bates. To support his argument, he cites Perez v. Smith (1993) 19 Cal.App.4th 1595, and
Quaranta v. Merlini (1987) 192 Cal.App.3d 22, disapproved in Watts, supra, 10 Cal.4th at p.
761. However, those cases addressed amenability to process and they lend no authority to his
argument that service on Harris was impossible, impractical, or futile.
       We are not persuaded that section 583.240, subdivision (d)’s exception for “impossibility,
impracticality, and futility” applies here. Baugher did not show reasonable diligence in his
attempts at locating and serving Harris. Baugher has repeatedly claimed that Harris was difficult
to locate, but there are no facts in the record to support his claim. The burden is on Baugher to
furnish a record with evidentiary support for his factual allegations. (Oliveira, supra, 206
Cal.App.4th at p. 1362.) We cannot conclude based on the record that Baugher’s frustration in



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locating Harris was anything more than routinely difficult. Likewise, we cannot conclude
Baugher’s failure to serve Harris was caused by circumstances beyond his control that would
otherwise meet the legal definition of “impossibility, impracticality, or futility”. Baugher has
failed to establish that the exception under subdivision (d) applies.
       In sum, there was substantial evidence for the trial court to conclude that Harris was not
served within the three-year period required by section 583.210, and that the failure to serve her
was not excused for any of the reasons specified in section 583.240.
       Respondent's motion for sanctions is denied.
                                          DISPOSITION
       The judgment is affirmed.




                                                      _________________________
                                                      Siggins, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Pollak, J.




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