Judge Curtis A. Kin, Case 20STCV03048 2023-05-02 Tentative Ruling

Judge: Curtis A. Kin, Case: 20STCV03048, Date: 2023-05-02 Tentative Ruling

Case Number: 20STCV03048 Hearing Date: May 2, 2023 Dept: 72

MOTION TO QUASH SERVICE OF SUMMONS

Date: 5/2/23 (8:30 AM)

Case: Susie Seniura v. Benjamin M. Lang (20STCV03048)

TENTATIVE RULING:

Defendant Tammy P. Lang-Tanaka’s Motion to Quash Service of Summons and to Dismiss for Failure to Prosecute is DENIED.

Defendant Tammy P. Lang-Tanaka as Successor Trustee of the Benjamin M. Lang Trust of 2017 dated May 18, 2017 moves for an order quashing the summons against her and for dismissal on the ground that she was not served within three years of the filing of the Complaint.

CCP § 583.210 states: “(a) The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.”

The Complaint was filed on January 24, 2020. Defendant was added in place of Doe 1 on November 23, 2022. Nevertheless, because Doe 1 was named in the Complaint, the time under CCP § 583.210 starts from January 24, 2020. (Lesko v. Superior Court (1982) 127 Cal.App.3d 476, 482 [finding time to dismiss ran from filing of original complaint when Doe defendant named].)

Under CCP § 583.240(a), “[i]n computing the time within which service must be made” pursuant to CCP § 583.210(a), the time when the “defendant was not amenable to the process of the court” is excluded. When a defendant has died and there is no personal representative, the defendant is not amenable to the service of process. (Polony v. White (1974) 43 Cal.App.3d 44, 48 [“If a defendant is dead and no estate has been probated, no one is in existence on whom process can be served”].)

Here, it is undisputed that defendant Benjamin M. Lang died on March 20, 2021. (Thorson Decl. ¶ 16; Lang-Tanaka Reply Decl. ¶ 8.) Defendant Lang’s 50% interest in the subject property was held in the Benjamin M. Lang Trust. (Thorson Decl. ¶ 17.) It is undisputed that defendant Lang-Takana was not appointed as Trustee of the Trust until February 28, 2022. (Thorson Decl. ¶ 26; Lang-Tanaka Reply Decl. ¶ 9.) From April 2021, when the prior trustee resigned, to February 28, 2022, a period of at least ten months, there was no one to sue with respect to defendant Lang’s 50% interest. (Thorson Decl. ¶ 27.) Accordingly, the period to sue Lang-Tanaka was tolled for ten months.

Based on the filing date of January 24, 2020, plaintiff Susie Seniura had three years, plus ten months, or November 24, 2023 to serve the summons on Lang-Tanaka. The amended summons was served on March 29, 2023. (Thorson Decl. ¶ 59 & Ex. 4.) The proof of service of summons was executed under penalty of perjury under the laws of the State of California. Accordingly, the proof of service of summons is properly executed under CCP § 2015.5(b), even though the place of execution is not listed in the proof of service. Plaintiff does not otherwise indicate that the amended summons was defective.

Because the amended summons was served before November 24, 2023, mandatory dismissal under CCP § 583.210(a) is not warranted.

The motion is DENIED.

Defendant also contends that the Court should issue an order to show cause regarding why sanctions should not be imposed under Rule of Court 3.110(b) because defendant was not served within 30 days of November 23, 2022, when she was added to the action. However, the Court exercises its discretion under Rule of Court 3.110(f) not to issue an order to show cause. Defendant was properly served the amended summons and Complaint. This case shall proceed on its merits.

As for plaintiff’s request for sanctions, CCP § 128.5 requires a separate motion, which is alone grounds to deny the request. (CCP § 128.5(f)(1)(A).) Further, considering (1) that plaintiff relied on an assertion of reasonable diligence in opposing this motion (which is debatable given that plaintiff did not add defendant to this action until nine months after defendant was appointed trustee (November 23, 2022)) and (2) that plaintiff did not even rely on or cite CCP § 583.240(a) as a basis for denial of this motion, this Court cannot conclude defendant necessarily brought this motion in bad faith.

Ten (10) days for defendant Tammy P. Lang-Tanaka to respond to the Complaint. The Case Management Conference is continued to June 14, 2023, at 9:30 a.m., in Department 72 (Stanley Mosk Courthouse).