Filed 9/28/17 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SHAWN HIGGINS,
Petitioner,

v.

THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent; D071353
(San Diego County Super. Ct. No. 37

- 2012

- 00097695

- CU

- BC

- CTL)

ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT]

FRANCISCA CABANDONG et al.,

Real Parties in Interest.

THE COURT:
It is ordered that the opinion filed herein on September 28, 2017, be modified as

follows :

1. On page 15, line 3, immediately above the Disposition, change the number

"208" in both instances in that line to "308,", so the line reads as follows:

Higgins at least 308 days after the three years had expired (453

- 145 = 308).2

There is no change in the judgment.

HUFFMAN, Acting P. J.
Copies to: All partiesFiled 9/28/17 (unmodified version)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SHAWN HIGGINS,
Petitioner,

v.

THE SUPERIOR COURT O F SAN DIEGO COUNTY,
Respondent; D071353
(San Diego County Super. Ct. No. 37

- 2012

- 00097695

- CU

- BC

- CTL)

FRANCISCA CABANDONG et al.,

Real Parties in Interest.

ORIGINAL PROCEEDING in mandate. Joel R. Wohlfeil, Judge. Petition
granted.
Dinsmore & Shohl, Joseph Samuel Leventhal and Jessica G. Wilson for Petitioner.
No appearance for Respondent.
Gregory Jon Anthony for Real Party in Interest.2

Francisca Cabandong filed the underlying action in May 2012 and served Shawn
Higgins wi th a summons and third amended complaint in August 2016. In this writ
proceeding, petitioner Higgins challenges the trial court's denial of his motion to dismiss
real party in interest Cabandong's lawsuit on the basis that Cabandong failed to serve
Higgin s with the summons and complaint within three years of the commencement of the
action, as required by the mandatory provisions of Code of Civil Procedure

section 583.210, subdivision (a). 1 In denying Higgins 's motion, the court ruled that the

three

- year p eriod had not expired, since the action had been stayed from March 13, 2014,
when codefendant Ronald Powell filed bankruptcy, until July 29, 2016, when the
bankruptcy court granted Cabandong 's motion to lift the automatic stay that became
effective upon th e filing of Powell's bankruptcy.
We issued an order to show cause and now grant the petition. As a matter of law,
the automatic stay that applied to claims against debtor Powell did not apply to
Cabandong 's claims against nondebtor Higgins . Accordingly , the trial court erred in
ruling that Powell 's bankruptcy stay affected Cabandong 's obligation or ability to serve
Higgins in this action. Because Cabandong served Higgins more than three years after
commencement of this action, section 583.250 requires that Cabandong 's underlying
lawsuit against Higgins be dismissed.

1 Further undesignated st atutory references are to the Code of Civil Procedure.3 I.

FACTUAL AND PROCEDURAL BACKGROUND
On May 21, 2012, Cabandong filed the underlying action in the respondent San
Diego County Superior Court against Powell, Powell Financial Services, Inc. (PFS), and

Does 1 through 100. 2 Later in May 2012, Cabandong filed a first amended complaint,

and Powell appeared in the action in July 2012. Although the parties have not provided
copies of these complaints, based on other documents in the record, we u nderstand that
Cabandong sued Powell and PFS for a return of $155,000 that Cabandong allegedly

loaned to PFS in 2008.
In March 2014, Powell filed for voluntary bankruptcy under chapter 7 of the
United States Bankruptcy Code in the United States Bankruptc y Court for the Southern
District of California, resulting in case No. 14

- 01904

- LT7 (Bankruptcy Case). Three
months later in June 2014, Cabandong filed an adversary proceeding against Powell in
the United States Bankruptcy Court for the Southern District of California, resulting in
adversary No. 14

- 90107

- LT (Adversary Proceeding). 3 In the Adversary Proceeding,
Cabandong alleged that the debt underlying the $155,000 loan that was the subject of the

2 The superior court's register of actions reflects that PFS was a California corporation dissolved in February 2012. PFS is not a party to this writ proceeding and its corporate status is irrelevan t to the issues in this writ proceeding.

3 An adversary proceeding is an " '[a]ction' " or " 'civil action' " brought under the Bankruptcy Code. (Fed. Rules Bankr. Proc., rule 9002(1).) Adversary proceedings are governed by the rules of part VII of the Federal Rules of Bankruptcy Procedure, rule 7001 et seq., and the 10 types of claims that can be brought in an adversary proceeding are set forth in rule 7001.4

state court action against Powell was nondischargeable und er title 11 United States Code

section 523. 4 (See Fed. R. Bankr. Proc., rules 7001(6), 9002(1) [to determine the
dischargeability of a debt, the creditor's civil action in bankruptcy court is an adversary
proceeding].)
On August 5, 2014, the bankruptcy c ourt granted Powell a discharge in the
Bankruptcy Case. (11 U.S.C. § 727.) On August 11, 2014, the bankruptcy court
approved the report of the trustee of Powell 's bankruptcy estate, closed the Bankruptcy
Case, and discharged the trustee. The Adversary P roceeding continued, and by this point
in time, all that had happened was that Powell had answered Cabandong 's complaint.
In August 2016, following a motion in the superior court by Cabandong based on
facts that her attorney learned during discovery in t he Adversary Proceeding, the court

allowed Cabandong to file a third amended complaint in the underlying action. 5 In the
third amended complaint, Cabandong identified Higgins as Doe 2 and realleged certain

causes of action and asserted new causes of actio n against Higgins , PFS and Does 1 and 3
through 20

— all based on the $155,000 that Cabandong allegedly loaned to PFS in 2008.

4 More specifically, Cabandong asserted two claims for relief under title 11 United States Co de section 523, which provides in part: "(a) A discharge under section 727

. . . of this title does not discharge an individual debtor from any debt

— [¶] .

. . [¶] (2) for money

. . . , to the exte nt obtained by

— [¶] (A) false pretenses, a false r epresentation, or actual fraud, other than a statement respecting the debtor ' s or an insider ' s financial condition; [or ¶] .

. . [¶] (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny [.]"

5 The superior cour t's register of actions reflects that "th[e]re is no second amended complaint."5

At all times, Cabandong has contended that the filing of the August 2016 third amended
complaint relates back to the May 2012 fi ling of the action.
Cabandong served Higgins with the summons and third amended complaint on
August 16, 2016.
Higgins responded to Cabandong 's third amended complaint with a motion to
dismiss the May 2012 action for failure to have served the summons a nd complaint
"within three years after the action is commenced against the defendant," as required by

section 583.210, subdivision (a). 6 Higgins brought his motion pursuant to

section 418.10, subdivision (a)(3), which allows in part for a defendant's init ial
appearance to be a motion to dismiss the action for failing to serve the summons and
complaint within three years in violation of section 583.210, subdivision (a). As relevant
to the issue in this writ proceeding, Higgins contended that none of the st atutory
exclusions or tolling provisions applicable to the three

- year mandatory provision was
applicable, 7 expressly arguing that the automatic stay in the Bankruptcy Case applicable

6 " The 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
, a n action is commenced at the time the complaint is filed. " ( § 583.210 , subd. (a).)

7 The statutory exc lusions involve situations in which " the defendant enters into a stipulation in writing or does another act that constitutes a general appearance in th e action. " (§ 583.220.) T he period for service of the summons and complaint is to lled for any time during which: " (a) The defendant was not amenable to the process of the court. [¶] (b) The prosecution of the action or proceedings in the action was stayed and the stay affected service. [¶] (c) The validity of service was the subject of litigation by the parties. [¶] (d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control.

. . ." (§ 583.240.)6

to debtor Powell did not affect the service of the summons and complaint in the
underlying action on nondebtor Higgin s

. Cabandong opposed Higgins 's motion. To the extent her opposition dealt with a
potential tolling of the three

- year requirement (§ 583.240, subds. (b), (d); see fn. 7 ),

Cabandon g relied on a July 29, 2016 bankruptcy court order in the Adversary
Proceeding , in which the court granted a motion by Cabandong to lift the automatic stay

so that Cabandong could proceed with all causes of action in the underlying state court
action again st all defendants except the debtor, Powell (Bankruptcy Court Ruling).
Higgins filed a reply, arguing in part that, because he had been amenable to
service of process at all times since May 2012 when Cabandong filed the state court
action, the service of the summons and complaint in August 2016 was untimely for
purposes of section 583.210, subdivision (a).
Following oral argument, the trial court denied Higgins 's motion in a signed

minute order. 8 The court found that the automatic stay applicable to de btor Powell had
precluded the prosecution of the state court action against nondebtor Higgins between the
date of Powell's bankruptcy in March 2014 and the date of the Bankruptcy Court Ruling
in July 2016. Thus, for purposes of applying section 583.210, s ubdivision (a), the court
ruled that by excluding the two years four months between those two events, Cabandong

8 At oral argument, the court also denied Cabandong 's request for judicial notice. Although the court's minute order does not reflect the ruling, the parties do not raise any issue or argument regarding this ruling.7

had served Higgins with the summons and complaint within three years of the

commencement of the action.
Higgins timely filed a petition and su pporting documents in this court, seeking a
writ of mandate to require the trial court to dismiss the action as to him. (§ 418.10,

subd. (c).) We requested and Cabandong provided an informal letter response, followed
by a request for judicial notice and a corrected informal letter response. We issued an
order to show cause, denied Cabandong 's request for judicial notice, and stayed the
superior court action as to Higgins

. Higgins filed a return, and we entertained oral

argument.

II

DISCUSSION

As we ex plain, because the automatic stay in the Bankruptcy Case applied only to
claims against the debtor, Powell , and not to claims Cabandong may have had against
Higgins
, Cabandong could have named and served Higgins at any time. Having served
Higgins with the summons and complaint more than three years after filing the
underlying action, Cabandong violated section 583.210. The superior court erred in
concluding otherwise and in not dismissing the action as to Higgins

.
A. Law
The policy of the State of Califo rnia is "that a plaintiff shall proceed with
reasonable diligence in the prosecution of an action." (§ 583.130.)

Section 583.210, subdivision (a) requires that a defendant be served with the
summons and complaint within three years after the action is commenced. (See fn. 6 ,8

ante .) Pursuant to section 583.250, 9 "[d] ismissal for failure to serve within three years is
mandatory, subject only to exceptions as expressly provided by statute. " ( Sanchez v.
Superior Court (1988) 203 Cal.App.3d 1391, 1396 ( Sanchez ).) Cabandong does not rely
on any of the statutory exceptions in section 583.220. (See fn. 7 , ante .) Rather, she relies

on section 583.240, which tolls t he period for service of the summon s and complaint
during any time in whi ch t he prosecution of the action was stayed and the stay affected

service ( id. , subd. (b)) or in which s ervice was impossible, impracticable, or futile due to

causes beyond the plaintiff's control ( id ., subd. (d)). (S ee fn. 7 .) Cabandong 's position is
based on the effect of the bankruptcy stay associated with Powell 's Bankruptcy Case.
The filing of a voluntary chapter 7 bankruptcy petition " operates as a stay,
applicable to all entities , of

— [¶] (1) the commencement or continuation

. . . of a
judicial

. . . action or proceeding against the debtor ." ( 11 U.S.C. § 362(a)(1), italics

added ; accord, Pennsylvania Public Welfare Dept. v. Davenport (1990) 495 U.S. 552
, 560, fn. 3 [11 U.S.C. § 362(a) stay automatically "protects a debtor from various
collection efforts" (italics added)]; Webster v. Superior Court (1988) 46 Cal.3d 338, 349
,
fn. 8 .) " ' The automatic stay is self

- executing and is effective upon filing the bankruptcy
petition. ' " ( Shaoxing County Huayue Import & Export v. Bhaumik (2011) 191

9 " (a) If service is not made in an action within the time prescribed in [section 583.210, subdivision (a)] : [¶] (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 ow n 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. " ( § 583.250 , italics added.)9

Cal.App.4th 1189, 1196 ( Shaoxing ); accord, Valencia v. Rodriguez (2001) 87
Cal.App.4th 1222, 1226 ( Valencia ).) Significantly, " the automatic stay of judicial
proceedings against a debtor in b ankruptcy does not apply to nondebtor codefendants ."
( Cross v. Cooper (2011) 197 Cal.App.4th 357, 365 , fn. 2 ( Cross ); accord, Danko v.

O ' Reilly (2014) 232 Cal.App.4th 732, 748 ( Danko ) [" ' automatic stay does not

. . . apply

to nondebtor entities such as

. . . codefendants ' " ].) As a general rule, therefore, because
"the automatic stay protects only the debtor ," the "[b]ankruptcy of one defendant in a
multidefendant case does not stay the case as to the remaining defendants." (March et al.,

Cal. Practice Guide: Bankruptcy (The Rutter Group 2016) ¶ 8:100, p. 8(I)

- 8, ¶ 8:125,

p. 8(I)

- 11 [citing federal authorities].)
In denying Higgins 's motion, the superior court ruled that the automatic stay in the
Bankruptcy Case terminated as of the July 2016 Bankruptc y Court Ruling. While not
stating so directly, the court necessarily applied a tolling provision

— either because the
state court action was stayed (§ 583.240, subd. (b)) or because service was impossible,
impracticable or futile due to causes beyond Caba ndong 's control ( id. , subd. (d))

— to

conclude that Cabandong served Higgins with the summons and complaint within three
years of filing the original complaint. In doing so, the court applied legal criteria (effect
of the bankruptcy stay) to undisputed fa cts (dates of filing of the underlying action and
Bankruptcy Case and of service on Higgins ). Accordingly, we review de novo the trial
court's ruling. (See International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th
606, 611 [applying statute of limitations to undisputed facts is "a question of law"].)10

Higgins suggests that the potential issue s for our consideration are reviewed for an

abuse of discretion. 10 That may be an appropriate standard to review a superior court's

determination whether t he plaintiff's ability to serve the defendant was affected by a stay
(§ 583.240, subd. (b)) or an impossibility, impracticality or futility due to causes beyond
the plaintiff's control ( id. , subd. (d)). However, as applicable here, before the court could
have exercised its discretion in these areas, it necessarily must have assumed or
concluded that the automatic stay affected Cabandong 's prosecution of the action against
Higgins . Because, as we explain in our independent review, such an assumption or

con clusion was erroneous as a matter of law, the court should not have reached

— and
we express no opinion regarding

— issues in which the court may have had discretion to

extend section 583.210, subdivision (a)'s three

- year period upon a sufficient showing.

B. Analysis
Cabandong filed her lawsuit in May 2012, but did not serve Higgins with a
summons and complaint until more than three years later in August 2016. Thus, unless

more than 15 months of that time is excluded, section 583.250 mandates that the act ion

be dismissed. ( Sanchez
, supra , 203 Cal.App.3d at p. 1396 ; see fn. 9 , ante .)
Cabandong 's reliance on the automatic stay associated with Powell 's Bankruptcy
Case is misplaced. 11 Although that stay was automatic as a matte r of law when Powell

10 Cabandong does not suggest a standard of review.

11 Cabandong argues: "[T] he prosecution of the action was stayed from and after Mr. Powell ' s bankruptcy filing on March 13, 2014, until the Bankruptcy Court entered [the Bankruptcy Court Ruling]

. . . on July 29, 2016 ."11

filed his chapter 7 petition ( Shaoxing
, supra , 191 Cal.App.4th at p. 1196; Valencia
,

supra , 87 Cal.App.4th at p. 1226 ), that stay applied only to the debtor , defendant Powell
,
not to the nondebtor
, codefendant Higgins . ( Cross , supra , 197 Cal.App.4th at p. 365
,
fn. 2; Danko
, supra , 232 Cal.App.4th at p. 7 48 .)
Cabandong argues that all proceedings in the underlying action, not just the claims
against Powell , were stayed as of the date of Powell 's bankruptcy in March 2014. In
support of her position, Cabandong relies on a "Notice of Stay of Proceedings" that she
prepared and filed in the underlying action on June 6, 2014. This pleading is a Judicial
Council form intended for use where, as applicable here, there is an "[a]utomatic stay

c aused by a filing in

. . . a federal bankruptcy court." 12 (Cal. Rules of Court,

rule 3.650(b)(4).) Cabandong checked the box on the form indicating that the case was

stayed as "to all parties" due to Powell 's automatic stay. 13 From this language,

Cabando ng argues that the superior court's record establishes that the automatic stay
(applicable to debtor Powell ) precluded her from proceeding against (nondebtor) Higgins

. Cabandong 's notice, however, is not a court order staying the entire action; at best, t he

12 In opposition to Higgins 's motion, Cabandong asked the superior court to take judicial notice of this pleading. (See fn. 8
, ante. ) The court denied C abandong 's request for judicial notice on the basis that the court did not need to take judicial notice of a pleading in the court's file. Accordingly, because this notice was cited by a party and in the court's file, we will assume that the notice was pr operly before the trial court and thus is properly part of the record in this writ proceeding.

13 Cabandong attached a copy of one page of a three

- page March 2014 bankruptcy court notice of Powell 's Bankruptcy Case. Curiously, Cabandong 's attorney who si gned the notice declared under penalty of perjury that he is "the attorney for the party who requested or caused the stay."12

form reflects Cabandong 's counsel's mistaken belief that the automatic stay in Powell 's
Bankruptcy Case applied to nondebtor defendants in the underlying action. 14 (Compare
Highland Stucco & Lime, Inc. v. Superior Court (1990) 222 Cal.App.3d 637, 644

[ W here, in multiparty complex litigation, the trial court stayed "proceedings other than
those having to do with abatement and the statute of limitations," the stay "clearly
affected the service of process in that it precluded service upon additional defenda nts
until the stay was lifted ."].)
Thus, at no time did the automatic stay against Powell affect Cabandong 's ability
to proceed against Doe 2 or Higgins . Stated differently, at all times since the filing of the
underlying action in May 2012, Cabandong c ould have served process and prosecuted her
claims against Higgins

. Cabandong explains that she did not know of Higgins 's identity or involvement
until after discovery in the Adversary Proceeding and that once she learned of his
involvement, she promptl y took affirmative action in both the bankruptcy court (related
to the automatic stay) and the superior court (related to the third amended complaint).

However, Cabandong 's explanation is irrelevant, since for purposes of computing the

14 Cabandong tells us that Powell also filed a similar notice on April 19, 2016, and although the document is not properly part of the record in this writ proceeding, the register of actions supports her statement. Like the notice from Cabandong , however, a notice by Powell as to the effect of the stay in his Bankruptcy Case is irrelevant to the issue under consideration. As a matte r of substantive law , the automatic stay in Powell 's Bankruptcy Case precluded the prosecution of the action against only the debtor, Powell. ( Cross , supra , 197 Cal.App.4th at p. 365 , fn. 2; Danko
, supra , 232 Cal.App.4th at p. 7 48 .)13

three years in whic h the plaintiff must serve the defendant, "[f]ailure to discover relevant
facts or evidence is not a cause beyond the plaintiff's control.

. ." (§ 583.240, subd. (d)).
( Republic Corp. v. Sup erior Court (1984) 160 C al. A pp. 3d 1253, 1256 [under predecessor

t o § 583.240, subd. (d), p laintiff ' s failure to discover the true identity or facts showing the
liability of an unserved Doe defendant in sufficient excuse for delay in service of

summons on real defendant ].)
In a related argument, Cabandong is wrong in s uggesting that, because the filing
of the third amended complaint in which she identified Higgins as Doe 2 relates back to
the filing of the original complaint, the service of the summons and third amended
complaint also relates back to the filing of the o riginal complaint

. The relation

- back
doctrine applicable to a fictitiously named defendant and the requirement that a plaintiff
serve the summons and complaint within three ye ars are independent concepts. Thus,

even w here the filing of an amended complai nt on a Doe defendant relates back to the
filing of an original complaint
, the plaintiff must nonetheless identify and serve a Doe
defendant with a summons and complaint within three years of the commencement of the
action. ( Lopa v. Superior Court (1975) 46 Cal.App.3d 382, 387

- 390 [under predecessor
to § 583.210, subd. (a)] ; see § 583.250, subd. (d) [requirements of § 583.210 et seq

. " are mandatory and are not subject to extension, excuse, or exception except as expressly
provided by statute " ].)

The rem ainder of Cabandong 's arguments are based on Higgins being a necessary
and indispensable party for purposes of joinder under section 389. Cabandong does not
attempt to establish, however, that Higgins is, in fact, necessary or indispensable, and on14

that b asis, Cabandong forfeited consideration of the arguments. ( Cahill v. San Diego Gas

& Electric Co. (2011) 194 Cal.App.4th 939, 956.)
In closing, we note that the premise for all of Cabandong 's bankruptcy

- related

arguments

— namely, that the automatic stay was in effect until the Bankruptcy Court
Ruling in July 2016

— is erroneous. Although we do not base our opinion on the
following conclusion, as a matter of law , the automatic stay in Powell 's Bankruptcy Case
expired on August 5, 2014

— i.e., the date on which debtor Powell received a
discharge. 15 (11 U.S.C. § 362(c)(2)(C).) Accordingly, the automatic stay was in effect
merely 145 days (Mar. 13, 2014

- Aug. 5, 2014), yet Cabandong served Higgins with the
summons and complaint 453 days more than three yea rs after filing the action (May 21,

15 Based on Powell 's discharge in bankruptcy, we also reject Cabandong 's suggestion that the Bankruptcy Court Ruling in the Adversary Proceeding somehow resurrected and then lifted the automatic stay in the Bankruptcy Case that had already expired as a matter of law. The aut omatic stay neither arises in nor is affected by an adversary proceeding ; in a chapter 7 case, the stay arises as a matter of law " ' upon filing the bankruptcy petition ,' " which results in a bankruptcy case ( Shaoxing
, supra , 191 Cal.App.4th at p. 1196 ; se e 11 U.S.C. § 362(a)), and expires when the debtor receives a discharge in the bankruptcy case (11 U.S.C. § 362(c)(2)(C)).15

2015

- Aug. 16, 2016). 16 Even if we were to assume there was a basis on which to toll

the time to have served Higgins due to the automatic stay, Cabandong still served
Higgins at least 208 days after the three years had expired (453

- 145 = 208).

DISPOSITION
Let a writ of mandate issue directing the superior court to vacate the portion of its

November 4, 2016 minute order denying Higgins 's motion to dismiss and to enter a new
order granting the motion. The stay previous ly issued by this court is dissolved upon
issuance of the remittitur. Higgins is awarded his costs in this proceeding. (Cal. Rules of
Court, rule 8.493(a).).

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

NARES, J.

16 Once " a bankruptcy discharge is entered, it replaces the automatic stay with a permanent injunction against such judicia l proceedings. " ( Weakly

- Hoyt v. Foster (2014) 230 Cal.App.4th 928, 931, italics added.) That is because a discharge in bankruptcy operates as an injunction against any action to collect a discharged debt. (11 U.S.C. § 524(a)(2).) Like the automatic sta y, " the postdischarge injunction affect[s] only the personal liability of the debtor "; the postdischarge injunction " do[es] not extend to third parties liable for the same debt. " ( Weakly

- Hoyt , at pp. 931

- 932; italics added.)