Judge: Anne Hwang, Case: 22STCV25282, Date: 2024-10-22 Tentative Ruling

Case Number: 22STCV25282    Hearing Date: October 22, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

On August 4, 2022, Plaintiffs Miracle Adkins by and through Guardian Ad Litem Delorise Polk, and Paige Adkins by and through Guardian Ad Litem Delorise Polk (“Plaintiffs”) filed a complaint against Defendants Susan Hannaford, Marquessa Margolin, Norma Parry, Palazzo Beverly Hills, LLC, Kennie D. Leggett, Juggalot Company LLC, and Rahkeim Crawford for wrongful death.

On September 16, 2024, Defendants Marquessa Margolin and Susan Hannaford (collectively, “Defendants”) filed the instant motion to quash service of the summons and complaint alleging failure of service by publication. Plaintiffs oppose[1] and Defendant reply.

ANALYSIS

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes:  (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (Code Civ. Proc., § 418.10, subd. (a)(1).)   

“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.”  (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440; accord Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160 [“It was incumbent upon plaintiff, after the filing of defendant's motion to quash, to present evidence discharging her burden to establish the requisites of valid service on defendant”]; Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 [“when a defendant challenges the court's personal jurisdiction on the ground of improper service of process “the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service” ”].)    

Code of Civil Procedure section 415.50 provides that “[a] summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either: [¶] (1) A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action[; or] [¶] (2) The party to be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property.”  (Code Civ. Proc., § 415.50(a).)  “The court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served. If the party to be served resides or is located out of this state, the court may also order the summons to be published in a named newspaper outside this state that is most likely to give actual notice to that party.”  (Id., § 415.50(b).)  “The order shall direct that a copy of the summons, the complaint, and the order for publication be forthwith mailed to the party if his or her address is ascertained before expiration of the time prescribed for publication of the summons.”  (Id.) 

The application for publication submitted to the Court notes the motion to quash service filed on July 24, 2023, which was heard by a different judge than the judge who granted the application for publication. However, the application for publication materially omits that the defendants specially appeared on the motion to quash service, provided a mailing address, and responded to Plaintiff’s argument that the address is for the airport, by indicating that the address is for the U.S. Postal Service post office at McCarren Airport. (Margolin Decl. in support of Reply ¶ 33.) No efforts were described in the application for publication to exercise diligence with regard to that address following the motion. Accordingly, the Court grants the motion to quash.[2]

CONCLUSION AND ORDER

Based on the foregoing, the motion to quash service by publication is GRANTED.

Moving parties are ordered to give notice.