California Appellate Tracker

Higgins v. Superior Court

October 9, 2017

The automatic stay in bankruptcy does not extend the three-year deadline for serving process on a co-defendant of the bankrupt debtor, that is not itself in bankruptcy.

This decision directs the trial court to dismiss this action as to defendant Higgins because plaintiff failed to serve Higgins within 3 years after filing the complaint. The fact that a co-defendant, Powell, filed a bankruptcy proceeding did not affect the running of the 3-year time for serving Higgins since the automatic stay in bankruptcy prevented prosecution of the action only as against Powell, not Higgins. Moreover, the automatic stay was only in effect until Powell received a bankruptcy discharge, 145 days after filing his bankruptcy petition. Plaintiff served Higgins more than 3 years plus 145 days after filing the complaint. Finally, plaintiff’s late discovery of facts showing Higgins’ involvement and potential liability did not extend the time for service because failure to discover relevant evidence is not a cause beyond plaintiff’s control.

California Court of Appeal, Fourth District, Division 1 (O’Rourke, J.); September 28, 2017; 2017 WL 4296368

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Higgins v. Superior Court

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