Judge: Audra Mori, Case: 18STCV06156, Date: 2022-12-20 Tentative Ruling

Case Number: 18STCV06156    Hearing Date: December 20, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On November 27, 2018, Plaintiff Mary-Ann Selvaggio (“Plaintiff”), filed this action against defendants Nestle Holdings, Inc., Nestle USA, Inc., and Daniel Marlin for damages arising from a motor vehicle accident.  On August 10, 2022, Plaintiff filed an Amendment to Complaint providing that the true name of Daniel Marlin is Daniel Marin (“Marin”). 

As relevant to these proceedings, on June 3 and June 30, 2022, Plaintiff filed a proof of service of summons providing that the complaint was served on “Daniel Marlin aka Daniel Marin” on March 23, 2022, by “Certified First Class Mail, Postage Prepaid, Return Receipt Requested” at an address in Florida pursuant to Code of Civil Procedure § 415.40.[1]  This provision provides,

A summons may be served on a person outside this state … by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing.

At this time, Marin purportedly moves for an order quashing service of the summons on him on the grounds that service was improper.  Plaintiff filed a late opposition.  As of December 14, 2022, no reply has been received. 

The moving papers provide in pertinent part,

In an effort of good faith, counsel for Nestle Defendants has attempted to contact the Moving Party at the last known address and telephone number in their records for him; however, they have been unable to reach him to date to verify whether he had received the documents that Plaintiff attempted to serve on Defendant, DANIEL MARLIN… Furthermore, the address that Plaintiff attempted to serve Defendant, DANIEL MARLIN "AKA DANIEL MARIN" at is not the address that the Nestle Defendants have in their records for the Moving Party; it is off by one (1) digit.

(Mot. at p. 4:19-26.) 

            Code of Civil Procedure § 418.10(a)(1) states that “A defendant, on or before the last day of his or her time to plead… may serve and file a notice of motion…[t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.”  While the instant motion purports to be brought on behalf of Marin, it appears in actuality to have been brought by others, namely Nestle Holdings, Inc. and Nestle USA, Inc. (collectively, the “Nestle Defendants”).  The Nestle Defendants’ counsel is clear that it has been unable to contact Marin, (Mot. Stover Decl. ¶ 19), and there is otherwise no evidence showing that the Nestle Defendants’ counsel has the authority to bring this motion on Marin’s behalf.  Indeed, no party has sought to intervene on Marin’s behalf.  Furthermore, the factual basis for the Nestle Defendants bringing this motion is that the address that Plaintiff served Marin at is not the address that the Nestle Defendants have in their records for Marin.  This is not sufficient alone to establish that service at the address listed in Plaintiff’s proof of service for Marin is invalid.[2] 

            Based on the foregoing, the motion is denied. 

Moving Defendants are ordered to give notice. 

PLEASE TAKE NOTICE:

·       The Court is not available to hear oral argument on this date.  If the parties do not submit on the tentative and want oral argument, the hearing will have to be continued, and the parties must work with the clerk to find an available date for the continuance.

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 20^th day of December 2022