Judge Alison Mackenzie, Case Number: 23STCV03076, Date: 2024-07-02 Tentative Ruling

Judge: Alison Mackenzie, Case: 23STCV03076, Date: 2024-07-02 Tentative Ruling

Case Number: 23STCV03076 Hearing Date: July 2, 2024 Dept: 55

NATURE OF PROCEEDINGS: Defendant Emiliano Malizia’s Motion to Quash Service of Summons.

BACKGROUND

In this case, SOLUTIONS 30 EASTERN EUROPE, S.R.L. et al. (“Plaintiffs”) seek damages against TOSOLINI, LAMURA, RASILE & TONIUTTI; TOSOLINI & LAMURA; EMILIANO MALIZIA; EMANUELE TOSOLINI; ROCCO LAMURA; NICOLA RASILE; and GIANNI TONIUTTI (“Defendants”), for alleged legal malpractice and other claims related to Defendants’ representation of Plaintiffs in a separate defamation case Plaintiffs filed in federal court against a third party.

Defendant MALIZIA (“Defendant”) filed a motion to quash service of the summons and Complaint for lack of personal jurisdiction due to invalid substituted service. After Defendant filed the motion but before the hearing on the motion, Plaintiffs filed a First Amended Complaint. Plaintiffs also filed an opposition to the motion and Defendant filed an objection to the late opposition.

LEGAL STANDARD

“‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction.’” Ellard v. Conway (2001) 94 Cal.App.4th 540, 544. Complainants have the initial burden to evidence valid statutory service of a summons and complaint. Floveyor Internat. v. Superior Court (1997) 59 Cal.App.4th 789, 794.

Direct estoppel would apply after dismissal of a complaint for lack of personal jurisdiction, as to an amended complaint subject to a motion to quash service on the same ground, and bars relitigating. S. Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 661. See also Sabek, Inc. v. Engelhard Corp. (1998) 65 Cal.App.4th 992, 1000 (“personal jurisdiction was completely resolved by the finding that no minimum contacts existed…. After the previous orders quashing service on this ground, it was incumbent … to seek reconsideration or appellate review…. Sabek is barred from relitigating the issue by direct estoppel. The lower court properly quashed service of the summons and Fifth Amended Complaint.”).

ANALYSIS

Defendant contends that Plaintiffs failed to serve the summons and Complaint in compliance with all requirements for substituted service, including the need for a declaration regarding attempts at personal service and a mailing of the documents. Plaintiff opposes, arguing the motions are moot after the Court’s receipt of the FAC, and the motions are late after proper service shown by proofs of service of a process server.

A decision states the requirements for substituted service, as follows:

Code of Civil Procedure Section 415.20, subdivision (b), provides in part: “If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served ... a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.”

Trackman v. Kenney (2010) 187 Cal.App.4th 175, 182-183.

On the merits, Plaintiffs have untimely filed oppositions having evidence of service of the summons and Complaint in statutory compliance, not addressed by any reply.

As for mootness, the Court timely received the FAC that by law is deemed filed on receipt, where it was electronically transmitted for filing, in keeping with the timing of Code of Civil Procedure, section 472. The filing of an amended complaint pursuant to Code of Civil Procedure Section 472 renders moot a demurrer addressing the superseded pleading because it "'"ceases to perform any function as a pleading."'" Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054. Accord State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131 (“the filing of an amended complaint moots a motion directed to a prior complaint.”).

Because the motions to be heard this date (and the next day) address the Complaint and not the FAC, the Court finds that they are moot, and intends to order them off calendar.

CONCLUSION

The Court orders the motion off calendar as moot, considering the filing of the First Amended Complaint.