Positive Result in Premises Liability Case

June 8, 2017

A California Superior Court granted a motion for discretionary dismissal in a premises liability case handled by Heidi C. Quan and Katelyn M. Knight.

The case arose from an incident that took place on August 3, 2012 at a fast food restaurant. According to the complaint, the plaintiff was using the restroom when a toilet paper dispenser dislodged and struck her in the face. The plaintiff filed suit on July 31, 2014, just a few days before expiration of the statute of limitations.

The plaintiff made eight attempts to serve the defendant in October and November of 2014, however the plaintiff made no efforts thereafter. In March of 2016, the plaintiff filed an ex parte application to permit service by publication. The Court did not issue an order until August of 2016, during which time the plaintiff made no effort to follow-up with the Court or effect service. Ultimately, the Court found that the plaintiff had not shown diligent efforts to effect service and denied the application. In September of 2016, the plaintiff attempted to effect service by mail with a notice and acknowledgement of receipt to another restaurant location, rather than to the defendant's registered agent.

Murchison attorneys filed a motion for discretionary dismissal based on delay in prosecution. In addition to arguing that the plaintiff could not offer any reasonable justification for her failure to serve the defendant for more than two years, counsel argued that the defendant had been unfairly prejudiced by the delay as it no longer had records of the employees working at the restaurant at the time of the incident, video footage, restroom inspection records, or records of which toilet paper dispensers had been replaced in the more than four years since the incident occurred. The plaintiff's counsel argued that the defendant knew of the incident shortly after it took place and therefore should have preserved any needed evidence, that the insurance company investigated the incident, and that service of process was impossible, impracticable or futile due to the fact that the defendant's registered agent for service lives in a gated community. The Court disagreed and dismissed the case.