Judge: Armen Tamzarian, Case: 23STCV15682, Date: 2024-05-03 Tentative Ruling
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Case Number: 23STCV15682 Hearing Date: May 3, 2024 Dept: 52
Tentative Ruling:
Defendant Min
Liu’s Motion to Quash Service of Summons
Defendant Min Liu moves to quash service of summons
on him by plaintiff Jonathon A. Valdez.
Service
of Process
Liu contends plaintiff did not
effect valid service of summons on him. “[O]nce
a defendant files a motion to quash the burden is on the plaintiff to prove by
a preponderance of the evidence the validity of the service and the court’s
jurisdiction over the defendant.” (Bolkiah
v. Superior Court (1999) 74 Cal.App.4th 984, 991.)
Plaintiff
meets this burden. “[I]n deciding whether service was valid, the
statutory provisions regarding service of process should be liberally construed
to effectuate service and uphold the jurisdiction of the court if actual notice
has been received by the defendant.” (Gibble
v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313.) “ ‘Personal service usually contemplates
actual delivery. But the person on whom
service is sought may not, by merely declining to take the document offered,
deny the personal service on the ground of lack of delivery, where under the
circumstances it would be obvious to a reasonable person that a personal
service was being attempted. In such a
case the service may be made by merely depositing the process in some
appropriate place where it would be most likely to come to the attention of the
person being served.’ ” (Crescendo
Corp. v. Shelted, Inc. (1968) 267 Cal.App.2d 209, 212; accord In re Ball (1934) 2 Cal.App.2d
578, 579 [“when men are within easy speaking distance of each other and facts
occur that would convince a reasonable man that personal service of a legal
document is being attempted, service cannot be avoided by denying service and
moving away without consenting to take the document in hand”].)
The
declaration of process server David Wall shows adequate personal service where
Liu tried to evade service. Wall states,
“When I stopped the Defendant and indicated that I was a process server with
legal documents, he became irritable and insisted that he did not speak
English. Despite my efforts to explain
my purpose, the Defendant refused to physically accept the documents and
attempted to walk away. I followed the
Defendant and repeatedly advised that I would have to leave the documents at
his feet if he did not accept service.”
(Wall Decl., ¶ 8.) “At 1:12 p.m.,
the Defendant indicated that he wanted to return to the offices of West Coast
Employment Lawyers and began walking north on South Hope Street. I placed the documents at his feet and
Defendant hastily returned to the office without collecting the documents.” (Id., ¶ 9.) “Shortly thereafter, I observed the Defendant
exit the law office and make a ten-minute phone call outside.” (Id., ¶ 10.)
Under
the authority cited above, Liu could not avoid service by refusing to accept
the documents and walking away. Process
server David Wall effected valid service of summons on Liu. Liu’s reply does not respond to this
argument.
Doe
Amendment
Liu also argues service of summons
should be quashed because plaintiff improperly substituted Liu as a Doe
defendant. Code of Civil Procedure
section 474 “allows a plaintiff in good faith to delay suing particular persons
as named defendants until he has
knowledge of sufficient facts to cause a reasonable person to believe liability
is probable.” (General Motors Corp.
v. Superior Court (1996) 48 Cal.App.4th 580, 595.)
A defendant may challenge the use of a Doe
amendment via a motion to quash. (A.N.
v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066 (A.N.).) “[S]ection 474 includes an implicit
requirement that a plaintiff may not ‘unreasonably delay’ his or her filing of
a Doe amendment after learning a defendant’s identity.” (Id. at pp. 1066-1067.) “[A] defendant named in an action by a Doe
amendment under section 474 may challenge the amendment by way of an
evidence-based motion, which argues that the plaintiff ‘unreasonabl[y] delayed’
his or her filing of the challenged amendment.”
(Id. at p. 1067.) “ ‘[U]nreasonable
delay’ … includes a prejudice element, which requires a showing by the
defendant that he or she would suffer prejudice from plaintiff’s delay in
filing the Doe amendment.” (Ibid.)
Liu fails to establish plaintiff unreasonably
delayed filing the Doe amendment. Defendant
presents evidence plaintiff knew sufficient facts to determine “Tom Liu” may be
liable for the causes of action alleged in plaintiff’s complaint. (E.g., Yang Decl., Ex. C, response to form
interrogatory No. 202.1.) That is not
the moving defendant’s name. All the
papers, including Liu’s sworn declaration, state his name is “Min Liu.” The Doe amendment identifies defendant as
“Min ‘Tom’ Liu.” Liu presents no
evidence plaintiff unreasonably delayed filing the Doe amendment after learning
Liu’s true first name is Min, not Tom.
Assuming
Liu met his burden of showing plaintiff unreasonably delayed filing the Doe
amendment, Liu shows no prejudice. Generally,
prejudice arises from the doctrine of relating back to the date of the initial
complaint—which is the purpose of Code of Civil Procedure section 474. (A.N., supra, 171 Cal.App.4th at pp.
1065-1066.) When the new defendant is
“added to the lawsuit as a defendant prior to the expiration of the statute of
limitations,” “[t]he question of whether or not the amendment ‘related back’ to
the date the complaint was filed was irrelevant.” (Davis v. Marin (2000) 80 Cal.App.4th
380, 387.) Where the plaintiff “could
have filed an amended complaint naming [the new party] as a defendant,
rather than an amendment to the complaint,” so “the analysis used under
Code of Civil Procedure section 474, would have been irrelevant.” (Ibid.; accord McClatchy v.
Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 375.)
Liu
does not argue any prejudice arises from the doctrine of relating back. The reasoning from Davis v. Marin
applies equally here. Plaintiff’s claims
arise from alleged sexual harassment by Liu.
The complaint alleges plaintiff began working for defendant Ekko
Material Handling Equipment Manufacturing Inc. in November 2022. (Comp., ¶ 9.)
It further alleges, “In or around December 2022, Ekko’s owner, Harrison
Liu … began bringing his brother Tom (Last Name Unknown) … to work with him at
Ekko.” (Id., ¶ 10.) It alleges Liu engaged in inappropriate
conduct beginning “[i]n or about February or March 2023.” (Id., ¶ 12.) Plaintiff filed an amendment to the complaint
substituting Liu for Doe 2 on December 15, 2023. Whether that amendment relates back to the
date of the initial complaint, July 6, 2023, makes no difference for any
statute of limitations.
Prejudice
may also arise from bringing a new defendant “into the case … on the eve of
trial.” (A.N., supra, 171
Cal.App.4th at p. 1068.) Plaintiff filed
the Doe amendment naming Liu as a defendant only five months after plaintiff
filed the complaint. The trial is set
for December 4, 2024. Liu shows no
prejudice of this kind.
Liu makes only a conclusory argument that
deposing him before adding him as a defendant “has a substantially prejudicial
effect on Liu because Liu had no counsel to represent him during the Deposition.” (Motion, p. 5.) “ ‘[A] defendant must show specific
prejudice.” (A.N., supra, 171
Cal.App.4th at p. 1066.) Liu makes no such
specific showing of prejudice. He relies
on the premise that not having an attorney is inherently prejudicial. Liu cites no authority supporting that
premise. And he does not identify any
prejudicial event at the deposition that could have been avoided if he had an
attorney then.
Disposition
Defendant
Min Liu’s motion to quash service of
summons is denied. Liu
shall file a responsive pleading within 20 days.