Judge: Christian R. Gullon, Case: 23PSCV01769, Date: 2023-12-11 Tentative Ruling

Case Number: 23PSCV01769    Hearing Date: December 11, 2023    Dept: O

Tentative Ruling

WALMART STORES, INC.’S MOTION TO QUASH SERVICE OF PROCESS is DENIED.

Background

This is a negligence case.

On June 13, 2023, Plaintiff Emilia Moreno filed suit against Defendants Walmart, Inc. (“Walmart”) and Julio Panduro (“Panduro”) for general negligence.[1]

On August 30, 2023, Plaintiff filed a Proof of Service of Summons (POS) indicating that Walmart was served at its 1275 N. Azusa Avenue Covina, CA 91722 store via substituted service on 8/23/2023 by serving “Vanessa A. - assistant manager.” That same day, another POS was filed indicating that a registered process server served Walmart at CT Corporation Systems 330 North Brand Boulevard, Suite 700 Glendale, CA 91203 on 8/24/23 by serving “Sarai Marin - Intake specialist for CT Corporation Systems, agent for service of process.”

On September 25, 2023, Defendant filed the instant motion.

On November 27, 2023, Plaintiff filed its opposition.

As of 12/5 at 10 AM, no reply has been received (due 5 court days before hearing [12/4])

Legal Standard

Defendants brings forth the motion on two grounds: (1) pursuant to California Code of Civil Procedure (CCP) section 418.10 on the grounds that the summons and complaint were not properly served and (2) in that Plaintiff’s Service of Process was not compliant with the statutory authority under California Rules of Court (CRC), Rule 3.110(b). (Notice of Motion p. 2:2-5.)

In turn, “[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).)[2]

“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.4^th 1426.)

As for CRC Rule 3.110(b), it requires a Plaintiff serve all Defendants with proper summons and complaint (service of process) and file it with the court within 60 days of filing the complaint.

Discussion

The issue presented on this motion is whether service is improper if a plaintiff fails to file proof of service of the summons and complaint within 60 days of filing the complaint.

For reasons to be discussed below, the court denies Defendant’s motion.[3]

First, according to Defendant’s own citation, “summons must comply substantially with statutory requirements in order for service of summons to constitute effective service.” (Motion p. 3 (emphasis added), citing MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.) “It is axiomatic that strict compliance with the code's provisions for service of process is not required.” (Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1442, emphasis added.) For example, substantial compliance occurs when the person to be served in fact actually received the summons (i.e., authorized person was received but plaintiff merely did not mail one of the persons to be served. (Id. at p. 1443.)

Here, despite the reason stated in the notice and a header in the motion, there is no discussion nor analysis that the motion is brought on the grounds of purported improper service (i.e., presumably that service was not made in compliance with section 416.10, which governs service upon corporations). (See also Opp. p. Motion p. 2 [“The sole apparent basis for the present motion to quash is failure to comply with Rules of Court, Rule 3.110(b). The moving papers fail to address any inadequacy of the method of service.”].) For example, there is no argument that the summons and complaint was received by an unknown employee of the corporation who is not a person specified in section 416.10 (id. at pp. 1443) or there is no argument that an improper person (e.g., someone aside from agent for service of process or the president, chief executive officer, or other head of the corporation) was served. Therefore, as Defendant is not disputing actual receipt of the summons, service was in substantial compliance with the statutory scheme.

Second, to the extent that Defendant appears to argue that the CRC are statutes, it has offered no analysis. To the contrary, the rules adopted by the Judicial Council are promulgated under constitutional authority. (Helbush v. Helbush (1930) 209 al.758, 763.) The CRC are adopted by the Judicial Council of California under constitutional authority. (Cal. Rules of Court Rule 1.3 [Authority].) Therefore, as CRC are not statutes, that renders the service in complete compliance with the statutory scheme for service of summons and complaint.

Third, even if Plaintiff did not comply with the CRC by failing to file the POS within 60 days of filing the complaint, Defendant has not provided any authority that a court must grant a motion to quash based on said grounds. (See also Opp. p. 4:11-14.) In fact, as noted by Plaintiff in opposition, CCP section 583.420 provides for discretionary dismissal if service is not effected within two years. Thus, to dismiss the case by means of a failure to quash for a plaintiff’s failure to file within 60 days does not comport with the prescribed statutory mechanism. Even then, the two-year dismissal is discretionary (unlike the CCP section 583.210’s mandated dismissal where service is not effected within three years of the filing of the lawsuit).

Therefore, Plaintiff’s service of Process upon Defendant Walmart on August 24, 2023 is deemed effective.

Conclusion

Based on the foregoing, the motion to quash service of process from Plaintiff is DENIED.