Judge Audra Mori, Case BC663331 2022-09-14 Tentative Ruling

Plaintiff Patroba Joseph Brown (“Plaintiff”) filed this action against Defendant Cassandra Mahan Richards (“Defendant”) for damages arising out Defendant’s alleged physical attacks on Plaintiff. The complaint alleges causes of action for battery and negligence.

As relevant to this proceeding, Plaintiff obtained an Order for Publication on December 14, 2021, allowing Plaintiff to serve Defendant with the summons and complaint by publication in the Spokesman-Review, a newspaper of general circulation in Spokane, Washington. On January 24, 2022, Plaintiff’s counsel filed a declaration attesting that service by publication was completed in Washington State. Plaintiff’s counsel attached a publisher’s affidavit from the Spokesman-Review stating that the summons and complaint were published once on January 6, 2022.

On March 23, 2022, Defendant filed the instant motion to quash service of the summons and complaint arguing that Defendant was improperly served by publication. Defendant contends that the order for publication was not warranted in this action, and that the matter should be dismissed because of Plaintiff’s delays in prosecuting the case. Further, Defendant argues that the publication did not comply with all legal requirements, as the publication happened only once instead of for four consecutive weeks.

On April 12, 2022, Plaintiff’s counsel filed a declaration providing that the Spokesman-Review made a publishing error in that the summons and complaint were only published once and not four times as ordered. Thereafter, on May 6, 2022, Plaintiff filed a declaration asserting that publication was completed in Washington State and attaching a publisher’s affidavit from the Spokesman-Review attesting that the summons and complaint were published in its newspaper four times.

Plaintiff then filed an opposition to Defendant’s instant motion on August 15, 2022. Plaintiff argues that Defendant’s contentions regarding the publication order constitute an improper motion for reconsideration brought almost ten months after the order was granted. Further, Plaintiff argues that Defendant’s contentions regarding Plaintiff’s failure to publish the summons and complaint is moot because Plaintiff’s counsel filed the declaration on May 6, 2022 should that publication was properly completed on April 15, 2022.

As an initial matter, Plaintiff asserts in opposition that Defendant’s motion is an improper motion for reconsideration. CCP § 1008(a) states in pertinent part, “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” (Emphasis added.) Plaintiff submits no evidence showing that Defendant was ever served with the December 14, 2021, or any other, Order for Publication, and thus, Plaintiff does not establish that Defendant’s motion is an improper for motion for reconsideration.

“A defendant . . . 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. . . .” (CCP § 418.10(a).)

“ ‘On a motion to quash service of summons, the plaintiff bears the burden of proving by a preponderance of the evidence that all jurisdictional criteria are met. [Citations.] The burden must be met by competent evidence in affidavits and authenticated documents; an unverified complaint may not be considered as supplying the necessary facts.’ [Citation.]” (Brown v. Garcia (2017) 17 Cal.App.5th 1198, 1203; see also Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 211 [“[W]here a defendant properly moves to quash service of summons the burden is on the plaintiff to prove facts requisite to the effective service.”].)

“A defendant is under no duty to respond in any way to a defectively served summons. It makes no difference that defendant had actual knowledge of the action. Such knowledge does not dispense with statutory requirements for service of summons.” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2015) ¶4:414, p. 4-67 citing Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466 (Kappel) and Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808 (Ruttenberg)) “[N]otice does not substitute for proper service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant.” (Ruttenberg, supra, 53 Cal.App.4th at p. 808.) “[I]n California, ‘…the original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void.”' (Id. at p. 809.)

(a) 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.

(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.

(b) 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. 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. Except as otherwise provided by statute, the publication shall be made as provided by Section 6064 of the Government Code unless the court, in its discretion, orders publication for a longer period.

Here, Defendant contends that the order for publication should not have been allowed or granted in this case because Plaintiff made no efforts to talk to any known relatives and made only a few service attempts. Defendant argues that the facts presented by Plaintiff were not sufficient to warrant service by publication and that Plaintiff did not diligently prosecute the case.[1] However, Defendant submits no competent evidence to support her arguments that publication was not necessary in this case. Defendant submits only an unauthenticated alleged email with a co-owner of a newspaper in Washington. This email has little bearing on the order for publication in this case. Moreover, Defendant fails to submit any evidence disputing the evidence set forth by Plaintiff in his application for an order for publication.

Nonetheless, as Defendant contends, Government Code § 6064 provides that “Publication of notice pursuant to this section shall be once a week for four successive weeks. Four publications in a newspaper regularly published once a week or oftener, with at least five days intervening between the respective publication dates not counting such publication dates, are sufficient.” Therefore, Plaintiff’s counsel’s declaration filed January 24, 2022, asserting that publication was completed does not meet Plaintiff’s burden to show service was effective because the attached publisher’s affidavit shows that the summons and complaint were published only once. This is insufficient to comply with the requirements for service by publication. (CCP § 415.50(b).) Plaintiff’s counsel in the declaration filed April 12, 2022, acknowledges that this publication was incomplete, and that the summons and complaint were not published four times as required.

Therefore, to the extent that Plaintiff relies on the publication in the Spokesman-Review that occurred once on January 6, 2022, the motion to quash service of the summons and complaint is granted.

The Court notes that Plaintiff has now submitted evidence showing that the summons and complaint were since published in the Spokesman-Review on March 25, April 1, April 8, and April 15, 2022. The Court makes no orders concerning this publication of the summons and complaint at this time, as the Motion to Quash was directed at the January 6, 2022, publication, not the March through April publications.[2]

Hon. Audra Mori

Judge of the Superior Court

[1] To the extent that Defendant argues, within the context of its Motion to Quash, that the case should be dismissed, Defendant fails to establish that an order dismissing the case is appropriate by way of this Motion.

[2] The Court also notes that Plaintiff has requested trial setting. However, this case is not yet at issue, as there is no Answer on file.