Judge Daniel M. Crowley, Case Number: 20STCV20443, Date: 2023-08-09 Tentative Ruling

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Defendants Dyno Nobel, Inc.’s and Alpha Dyno Nobel’s demurrer to Plaintiffs’ first amended complaint is overruled.

Specially Appearing Defendant International Fireworks Manufacturing Co.’s unopposed motion to quash Plaintiffs’ service of summons and complaint is granted. International Fireworks Manufacturing Co. is dismissed from this action.

Plaintiffs Craig Steven Roberts (“Craig”) and Carla Roxanna Roberts (“Carla”) (collectively, “Plaintiffs”) move for a protective order against all Defendants requiring them to propound all discovery regarding common issues jointly on behalf of all Defendants. (Notice of Motion PO, pg. 1; C.C.P. §§2017.020, 2019.030, 2030.090, 2031.060, 2032.510, 2033.080.)

Specifically, Plaintiffs request an order that Defendants shall jointly propound written discovery regarding the following topics: (1) Judicial Council Form Interrogatories (except Form Interrogatory No. 17.1); (2) Plaintiff’s work history; (3) Plaintiff’s work records; (4) The identity of persons who supervised and/or worked with Plaintiff; (5) Plaintiff’s medical records; (6) Plaintiff’s medical history; (7) Plaintiff’s medication history; (8) Plaintiff’s family history; (9) Plaintiff’s residential history; (10) Plaintiff’s social history; (11) Plaintiff’s hospitalization history; (12) Plaintiff’s surgical history; (13) Plaintiff’s smoking history; (14) Plaintiff’s controlled substance use history; (15) Plaintiff’s workers’ compensation claims; (16) Plaintiff’s litigation history; (17) Plaintiff’s medical diagnoses; (18) Potential causes of Plaintiff’s medical conditions; (19) Plaintiff’s current medical condition; (20) Plaintiff’s medical bills and payment thereof; (21) Plaintiff’s medication bills and payment thereof; (22) Plaintiff’s immigration status; (23) Plaintiff’s health insurance information; (24) Plaintiff’s occupational disability records; (25) Plaintiff’s other disability records; (26) Plaintiff’s social security records; (27) OSHA investigations, inspections, and citations of facilities where Plaintiff worked; (28) Investigations and inspections by other agencies of facilities where Plaintiff worked; (29) Plaintiff’s injuries; (30) Plaintiff’s general damages for pain, suffering and disfigurement; (31) Plaintiff’s damages for loss of earnings, loss of income, and lost earning capacity; (32) Plaintiff’s damages for past, present and future medical expenses; (33) Plaintiff’s other damages; and (34) All discovery to Carla Roxanna Roberts regarding her claim for loss of consortium. (Notice of Motion PO, pg. 2.)

Further, Plaintiffs request all motions to compel responses to such discovery shall be brought jointly by all Defendants who are dissatisfied with Plaintiffs’ responses to the jointly propounded discovery, and any Defendant may individually propound discovery regarding its own products, but that discovery shall not contain more than 35 requests without first obtaining leave of court. (Notice of Motion PO, pg. 2.)

Defendants Dyno Nobel, Inc. (“Dyno Inc.”) and Alpha Dyno Nobel (“Alpha Dyno”) (collectively, “Demurring Defendants”) demur to the 1st, 2nd, 3rd, 4th, 5th, and 6th causes of action in Plaintiffs’ first amended complaint (“FAC”). (Notice of Demurrer, pgs. 2-4; C.C.P. §§430.10(e), (f).)

Specially Appearing Defendant International Fireworks Manufacturing Co. (“IFMC”) specially appears unopposed to move to quash Plaintiffs’ service of summons and complaint on the grounds that (i) there was no valid service of summons, and (ii) the Court lacks personal jurisdiction over IFMC, because IFMC is a corporation formed under the laws of Pennsylvania with its principal place of business in Pennsylvania, and because Plaintiffs have provided no evidence that their claims against IFMC arise from any of its activities that took place within the State of California or that IFMC purposefully availed itself of the benefits of the State of California. (Notice of Motion Quash, pgs. 1-2; C.C.P. §418.10(a)(1).)

On May 28, 2020, Plaintiffs filed their original complaint. On September 1, 2023, Plaintiffs filed the operative first amended complaint (“FAC”) against Defendants Southwest Drilling, Inc., dba Southwest Explosives (“Southwest Drilling”) [previously sued as Doe No. 1]; Alpha Dyno [previously sued as Doe No. 2]; Austin Powder Company (“Austin Powder”) [previously sued as Doe No. 3]; Cannon Fuse, Inc. (“Cannon Fuse”) [previously sued as Doe No. 4]; Donovan Commercial Industries, Inc. (“Donovan Commercial”) [previously sued as Doe No. 5]; Dyno Inc. [previously sued as Doe No. 6]; E.B. Stone & Son, Inc. (“EB Stone”) [previously sued as Doe No. 7]; Goex Powder, Inc. (“Goex”) [previously sued as Doe No. 8]; Hodgdon Powder Company, Inc. (“Hodgdon”) [previously sued as Doe No. 9]; IFMC [previously sued as Doe No. 10]; New River Energetics, Inc. (“New River”) [previously sued as Doe No. 11]; Orica USA [previously sued as Doe No. 12];[1] Slurry Explosive Corporation (“Slurry Explosive”) [previously sued as Doe No. 13]; W.A. Murphy California Drilling & Blasting Co., Inc. (“WA Murphy”) [previously sued as Doe No. 14]; Walter Andersen Enterprises (“Walter Andersen”) [previously sued as Doe No. 15]; and Aldon Corporation (“Aldon”) [previously sued as Doe No. 16][2], alleging six causes of action: (1) negligence; (2) strict liability- warning defect; (3) strict liability- design defect; (4) fraudulent concealment; (5) breach of implied warranties; and (6) loss of consortium. (See FAC.)

On September 15, 2023, Plaintiffs filed the instant motion for protective order. On November 3, 2023, Austin Powder filed its opposition to the motion for protective order. On November 3, 2023, Walter Andersen, EB Stone, Cannon Fuse, and WA Murphy filed their joinders to Austin Powder’s opposition. On November 9, 2023, Plaintiffs filed their reply in support of the motion for protective order.

On September 27, 2023, Demurring Defendants filed their demurrer. Plaintiffs filed their opposition to the demurrer on January 31, 2024. As of the date of this hearing no reply has been filed.

Specially Appearing Defendant IFMC filed its motion to quash on December 11, 2023. As of the date of this hearing no opposition has been filed.

Plaintiffs’ counsel declares he met and conferred with all defense counsel by sending a written letter to them on September 7, 2023, asking all counsel to withdraw or withhold their pending discovery requests and agree to submit discovery jointly instead. (Decl. of Metzger ¶¶7, 12, Exh. A.) The Court finds Plaintiffs’ counsel’s declaration states facts showing a “reasonable and good faith attempt” to resolve the matter outside of court. (C.C.P. §§2016.040, 2033.080(a).)

C.C.P. §2033.080(b) provides that a party that has received discovery may file a motion for a protective order, seeking a variety of types of orders “that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense.”

The decision upon whether to enter a protective order lies within the sound discretion of the court. (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588, 591; Meritplan Insurance Co. v. Superior Court (1981) 124 Cal.App.3d 237, 242.) Moving parties have the burden to show good cause for protective order. (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.)

Plaintiffs’ motion for protective order is granted. Plaintiffs met their burden to demonstrate they need protection from the undue burden and expense of responding to Defendants’ discovery that would likely exceed 4,000 responses.

Plaintiffs attached discovery requests from Alpha Dyno, Dyno Inc., Cannon Fuse, and EB Stone which show duplicative documentary requests and interrogatories. (Decl. of Metzger ¶¶9-11, Exhs. C, D, E.)

Overall, Defendants will not suffer prejudice from being ordered to jointly propound discovery on common issues to Plaintiffs because such an order does not prevent Defendants from conducting reasonable discovery regarding their individual products.

Based on the foregoing, Plaintiffs’ motion for protective order is granted except that

1) Defendants may each propound discovery on the issue of any basis for liability for punitive damages;

2) Defendants may propound more than 35 interrogatories if counsel provides a declaration establishing that more than 35 are warranted given the complexity or quantity of issues in the case; and

Plaintiffs’ motion for a protective order is granted in part and denied in part.

Demurring Defendants demur to Plaintiffs’ 1st, 2nd, 3rd, 4th, 5th, and 6th causes of action on the basis they fail to state facts sufficient to constitute causes of action and they are uncertain. (Demurrer, pg. 2; C.C.P. §430.10(e).)[3]

Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (C.C.P. §430.41(a), emphasis added.) A declaration must be filed with a demurrer regarding the results of the meet and confer process. (C.C.P. §430.41(a)(3).)

Demurring Defendants’ counsel’s declaration states that on August 30, 2023, he sent a meet and confer correspondence to Plaintiffs’ counsel via email addressing the deficiencies in Plaintiffs’ operative complaint. (Decl. of Cho ¶3, Exh. A.) Demurring Defendants’ counsel’s declaration states that on August 30, 2023, Plaintiffs’ counsel emailed that the complaint is properly pled and advised Demurring Defendants’ counsel to file a demurrer if they felt they must. (Decl. of Cho ¶4, Exh. B.) Demurring Defendants’ counsel’s declaration is insufficient under C.C.P. §430.41(a)(3) because he does not indicate parties met and conferred in person or by telephone, as required by the statute. However, failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (C.C.P. §430.41(a)(4).) Accordingly, the Court will consider the instant demurrer.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

A cause of action for negligence requires the following elements: (1) legal duty owed to plaintiffs to use due care; (2) breach of duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318; Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

A cause of action for negligence based on a toxic tort product liability must meet the pleading requirements articulated in Bockrath v. Aldrich Chemical Co., Inc. Plaintiffs need to allege facts supporting each of the following: (1) “exposure” to each product claimed to have caused a specific illness; (2) the identity of each product that allegedly caused the injury; (3) that a particular toxin each product, specifically identified, entered into the body; (4) that exposure to each product was a substantial factor in bringing about, prolonging, or aggravating a specific illness; and (5) that each product was manufactured or supplied by a named defendant. (Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 78-80; see Rutherford v. Owens, Inc. (1997) 16 Cal.4th 953, 978 [setting forth “substantial factor” causation standard, on which Bockrath relies].)

Plaintiffs allege the following chemical products were exposed to Craig in the course of his employment, which caused his toxic injuries and occupational diseases: Dyno Fragmax Ammonium Nitrate Bulk (Alpha Dyno), Superprill (Dyno Inc.), LoDAN (Dyno Inc.), and HiDan (Dyno Inc.) (FAC ¶20.)

Plaintiffs allege in the course of and throughout Craig’s employment as a K-9 Bomb Unit trainer, he worked with and was exposed to lead, mercury, organic peroxides, oxidizing agents, explosives, solvents, and other chemical products which will be identified during the course of investigation and discovery. (FAC ¶22.)

Plaintiffs allege as chemical manufacturers and distributors, Defendants owed Plaintiff a legal duty to exercise due care in importing, producing, and distributing the foregoing chemical products to Plaintiff’s places of employment. (FAC ¶37.) Plaintiffs allege Defendants negligently and carelessly imported, produced, and distributed the foregoing chemical products to Plaintiff’s places of employment, where Craig was exposed to said toxic chemical products. (FAC ¶38.) Plaintiffs allege Defendants also failed to adequately warn Craig and Craig’s employers of the hazards of said toxic chemical products and failed to provide adequate instructions to Craig and Craig’s employers for the safe handling and use of said toxic chemical products. (FAC ¶39.) Plaintiffs allege Defendants violated Labor Code §6390.5 and the Hazard Communication Standard (8 C.C.R. §5194) in the importation, production, and distribution of the toxic substances to which Craig Steven was so exposed by, among other things:

(a) failing and refusing to evaluate their products to determine if lead, mercury, organic peroxides, oxidizing agents and other toxic chemicals contained in their products presented a health hazard of causing Multiple Sclerosis to employees using or exposed to their products [8 C.C.R. §5194(d)(1)];

(b) failing and refusing to identify and consider the available scientific evidence to determine if the lead, mercury, organic peroxides, oxidizing agents and other toxic chemicals contained in their products presented a health hazard of causing Multiple Sclerosis to employees using or exposed to their products [8 C.C.R. §5194(d)(2) et seq.];

(c) failing and refusing to identify their products as presenting a health hazard of causing Multiple Sclerosis even though the lead, mercury, organic peroxides, oxidizing agents and other toxic chemicals contained in their products presented a health hazard of causing Multiple Sclerosis, to employees using or exposed to their products [8 C.C.R. §5194(d)(5)];

(d) failing and refusing to ensure that each container of their products was labeled, tagged or marked to (i) identity the lead, mercury, organic peroxides, oxidizing agents and other toxic chemicals contained in their products and (ii) appropriately warn that the lead, mercury, organic peroxides, oxidizing agents and other toxic chemicals contained in their products presented a health hazard of causing Multiple Sclerosis to employees using or exposed to their products [8 C.C.R. §5194(f)(1)];

(e) failing and refusing to obtain or develop a material safety data sheet for the lead, mercury, organic peroxides, oxidizing agents and other toxic chemicals contained in their products [8 C.C.R. §5194(g)(1)];

(f) failing and refusing to include on the material safety data sheet the chemical and common names for the lead, mercury, organic peroxides, oxidizing agents and other toxic chemicals contained in their products [8 C.C.R. §5194(g)(2)(A)];

(g) failing and refusing to include on the material safety data sheet that the lead, mercury, organic peroxides, oxidizing agents and other toxic chemicals contained in their products presented a health hazard of causing Multiple Sclerosis, to employees using or exposed to their products [8 C.C.R. §5194(g)(2)(D)];

(h) failing and refusing to include on the material safety data sheet the primary routes of entry for the lead, mercury, organic peroxides, oxidizing agents and other toxic chemicals contained in their products in respect of the health hazard of causing Multiple Sclerosis, to employees using or exposed to their products [8 C.C.R. §5194(g)(2)(E)];

(i) failing and refusing to include on the material safety data sheet the OSHA permissible exposure limit, ACGIH Threshold Limit Value, and any other exposure limit used or recommended by defendants for the lead, mercury, organic peroxides, oxidizing agents and other toxic chemicals contained in their products in respect of the health hazard of causing Multiple Sclerosis, to employees using or exposed to their products [8 C.C.R. §5194(g)(2)(F)];

(j) failing and refusing to include on the material safety data sheet whether the lead, mercury, organic peroxides, oxidizing agents and other toxic chemicals contained in their products is listed in the National Toxicology Program (NTP) Annual Report on Carcinogens (latest edition) or has been found to be a potential carcinogen in the International Agency for Research on Cancer (IARC) Monographs (latest editions), or by OSHA [8 C.C.R. §5194(g)(2)(G)];

(k) failing and refusing to include on the material safety data sheet generally applicable precautions for safe handling and use known to Defendants for the lead, mercury, organic peroxides, oxidizing agents and other toxic chemicals contained in their products in respect of preventing the health hazard of causing Multiple Sclerosis, to employees using or exposed to their products [8 C.C.R. §5194(g)(2)(H)];

(l) failing and refusing to include on the material safety data sheet generally applicable control measures known to Defendants for the lead, mercury, organic peroxides, oxidizing agents and other toxic chemicals contained in their products in respect of preventing the health hazard of causing Multiple Sclerosis, to employees using or exposed to their products [8 C.C.R. §5194(g)(2)(I)];

(m) failing and refusing to include on the material safety data sheet or otherwise the specific potential health risks posed by the lead, mercury, organic peroxides, oxidizing agents and other toxic chemicals contained in their products in respect of causing Multiple Sclerosis, to employees using or exposed to their products [8 C.C.R. §5194(g)(2)(M)];

(n) failing and refusing to ensure that the information contained on material safety data sheets accurately reflects the scientific evidence of the health risks posed by the lead, mercury, organic peroxides, oxidizing agents and other toxic chemicals contained in their products in respect of causing Multiple Sclerosis, to employees using or exposed to their products [8 C.C.R. §5194(g)(5)];

(o) failing and refusing to update material safety data sheets with newly-discovered significant information regarding the hazards of the lead, mercury, organic peroxides, oxidizing agents and other toxic chemicals contained in their products in respect of causing Multiple Sclerosis, to employees using or exposed to their products [8 C.C.R. §5194(g)(5)]; and,

(p) failing and refusing to ensure that material safety data sheets complying with the Hazard Communication Standard (including specifying the potential health risks posed by the lead, mercury, organic peroxides, oxidizing agents and other toxic chemicals contained in their products in respect of causing Multiple Sclerosis, to employees using or exposed to their products) were provided to Plaintiff, Craig Steven Roberts’s employer at various locations in and around Los Angeles County, California, directly or via a distributor. [8 C.C.R. §5194(g)(6) & (7).]

Plaintiffs allege Craig was exposed to each of Defendants’ products, including those products manufactured and supplied Defendants, as alleged above, and to the toxic chemicals contained therein and released therefrom, as further alleged above. (FAC ¶44.)

protected by California Labor Code § 6390.5 and the Hazard Communication Standard (8 C.C.R. §5194). (FAC ¶45.)

Plaintiffs allege Craig was exposed to each of the foregoing toxic chemicals. (FAC ¶46.) Plaintiffs allege each of the toxic chemical products to which Plaintiff, Craig Steven Roberts, was exposed, was manufactured and/or supplied by the foregoing Defendants, as set forth in the section entitled “Product Identification” above. (FAC ¶47.) Plaintiffs allege as a result of Craig’s exposure to the foregoing toxic chemical products, toxins within said toxic chemicals including but not limited to lead, mercury, organic peroxides, oxidizing agents and other toxic chemicals, entered Craig’s body. (FAC ¶48.)

Plaintiffs allege Craig suffers from a specific illness, to wit, Multiple Sclerosis as well as other related and consequential injuries. (FAC ¶49.) Plaintiffs allege each of the foregoing toxic chemical products caused Craig’s Multiple Sclerosis and other injuries. (FAC ¶50.) Plaintiffs allege each toxin, that entered Craig’s body was a substantial factor in bringing about, prolonging, and aggravating his Multiple Sclerosis and other injuries. (FAC ¶51.)

Plaintiffs allege as a direct and proximate result of said negligent acts and omissions of Defendants, Craig suffers from Multiple Sclerosis and other related and consequential medical conditions. (FAC ¶52.) Plaintiffs allege as a direct and proximate result of said negligent acts and omissions of Defendants, Craig has been required to expend money and incur obligations for medical and related expenses in an amount not yet determined but which is well in excess of the jurisdictional minimum of the Court, and Craig has been unable to attend to his usual employment and activities. (FAC ¶53.) Plaintiffs allege as a further direct and proximate result of the negligent acts and omissions of Defendants, resulting in his severe toxic injuries, Craig has suffered lost income and will continue to suffer loss of future income, support and maintenance, all to Craig’s damage in a sum to be established according to proof. (FAC ¶54.) Plaintiffs allege as a further direct and proximate result of the actions and inactions of Defendants, resulting in severe toxic injuries, Craig has suffered and will continue to suffer general damages to be established according to proof at trial. (FAC ¶55.)

Plaintiffs’ cause of action for negligence stated facts sufficient to meet the standards articulated in Bockrath. Plaintiffs sufficiently allege Craig was exposed to each of the toxic materials claimed to have caused a specific illness, Multiple Sclerosis. (FAC ¶¶22, 38, 46.) Plaintiffs sufficiently identify the products that allegedly caused Craig’s injury. (FAC ¶¶20, 50.) Plaintiffs sufficiently allege that as a result of the exposure, the toxins entered Craig’s body. (FAC ¶¶50-51.) Plaintiffs sufficiently allege Craig suffers from a specific illness, and that each toxin that entered his body was a substantial factor in bringing about, prolonging, or aggravating the illness. (FAC ¶¶49, 51-52.) Plaintiffs sufficiently allege each toxin Craig absorbed was manufactured or supplied by Demurring Defendants. (FAC ¶¶44, 47, 60, 77, 99, 116.)

Accordingly, Demurring Defendants’ demurrer to Plaintiffs’ 1st cause of action is overruled.

A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

If the complaint contains enough facts to apprise defendant of the issues it is being asked to meet, failure to label each cause of action is not ground for demurrer: “Although inconvenient, annoying and inconsiderate, the lack of labels . . . does not substantially impair [defendant’s] ability to understand the complaint.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 n.2.)

Where a demurrer is made upon this ground, it must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears (by reference to page and line numbers of the complaint). (See Fenton v. Groveland Community Services District (1982) 135 Cal.App.3d 797, 809.)

Demurring Defendants fail to specify where the uncertainty appears by reference to page line and numbers in the complaint. (See id.)

Accordingly, Demurring Defendants’ demurrer on the basis of uncertainty is overruled.

“A defendant, on or before the 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.” (C.C.P. §418.10(a)(1).) By filing such motion, “a defendant makes a special appearance for the narrow purpose of contesting personal jurisdiction where the summons is defective.” (Stancil v. Superior Court (2021) 11 Cal.5th 381, 393.)

“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.” (Floveyer International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 793; see also Calvert v. Al Binali (2018) 29 Cal.App.5th 954, 961 [“To establish personal jurisdiction, it is essential to comply with the statutory procedures for service of process.”].) “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.” (Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160, internal quotations omitted.)

Effecting service on a corporation requires delivery of summons and complaint to some person on behalf of the corporation. (C.C.P. §416.10; Dill v. Berquist Construction Co., Inc. (1994) 24 Cal.App.4th 1426, 1437.) Moreover, a plaintiff cannot simply mail a summons and complaint to an out-of-state corporation and fail to address the same to a specific, named individual authorized to accept service. (See Dill, 24 Cal.App.4th at pg. 1437 [“Dill could be held to have substantially complied with the statute if, despite his failure to address the mail to one of the persons to be served on behalf of the defendants, the summons was actually received by one of the persons to be served. [¶] Dill argues that that is exactly what happened here, at least as to Strata. Noting (1) that L. Warner signed the postal receipt as an “Agent,” and (2) that section 416.10 permits delivery of the summons to a “person designated as agent for service of process” [citation omitted] or to “a person authorized by the corporation to receive service of process” [citation omitted], he concludes (3) that the summons was received by such an agent. He is mistaken.”].)

Service may be made upon “the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, [or] a general manager.” (C.C.P. §416.10(b).)

Service may also be made upon “a person authorized by the corporation to receive service of process.” (C.C.P. §416.10(b).) This includes persons who are designated as the corporation’s agent for service of process in various statements which a domestic or foreign corporation is required to file with the Secretary of State under various provisions of the Corporations Code. (See C.C.P. §416.10(a).) California corporations are required to appoint a local agent for service of process in their articles of incorporation and biennial information statement filed with the Secretary of State. (See Corps. Code §202(c), §1502(b).)

Plaintiffs’ proofs of service of summons of the initial Complaint and the FAC are defective because they state they served “The Company Corporation, Registered Agent” at 251 Little Falls Drive, Wilmington, DE 19808. (5/18/23 Proof of Service IFMC; 9/20/23 Proof of Service IFMC.) Here, like in Dill, there is no name on the proof of service for the “Registered Agent.” (Dill, 24 Cal.App.4th at pg. 1437.) C.C.P. §416.10 requires the identification of an actual person capable of accepting service on behalf of a corporation. Plaintiffs’ request for entry of Default against IFMC was also rejected by this Court’s clerk on the same basis.

Further, Plaintiffs failed to comply with the mandatory three-year service requirement set forth in C.C.P. §§583.210 and 583.250. Here, Plaintiffs filed their initial Complaint on May 28, 2020. The initial Complaint named only Doe Defendants 1 through 250. Accordingly, Plaintiff had until May 28, 2023, to identify and serve any Doe Defendant. Plaintiffs purportedly identified IFMC as a Doe Defendant on or about May 1, 2023, when they named IFMC as Doe 10. At that point, Plaintiffs were obligated to serve IFMC by May 28, 2023, three years after the commencement of the action. Plaintiffs’ initial service of the Complaint on May 3, 2023, was defective for the same reasons stated earlier regarding failure to name the agent for service of process. (5/18/23 Proof of Service IFMC.) Plaintiffs did not purportedly serve IFMC with the FAC until September 6, 2023, after the three-year service deadline had expired, and their proof of service for the FAC is for the same reasons its earlier proof of service is defective. (9/20/23 Proof of Service IFMC.)

Further, C.C.P. §583.110 indicates that service is not complete without a return of the Summons to the Court. (C.C.P. §583.110; see also In re Automobile Antitrust (1995) 40 Cal.App.4th 1246, 1249.) There is no indication Plaintiffs complied with this requirement by filing or returning the Summons with the Court. Therefore, Plaintiffs did not complete service of summons prior to the three-year deadline to do so, and their service on IFMC was defective for this reason.

Accordingly, IFMC’s motion to quash service of summons is granted and IFMC is dismissed from the action.

IFMC’s unopposed motion to quash service of summons is granted. IFMC is dismissed from this action.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] Orica USA was dismissed this case upon the Court granting its motion to quash service of summons. (10/12/23 Minute Order.)

[2] Aldon was dismissed from this case on November 15, 2023. (11/14/23 Request for Dismissal.)

[3] The Court notes Demurring Defendants indicate they demur to all causes of action in the FAC. However, Demurring Defendants only demur in substance to the 1st cause of action.