Judge: Daniel M. Crowley, Case: 21STCV14878, Date: 2023-01-27 Tentative Ruling

Case Number: 21STCV14878    Hearing Date: January 27, 2023    Dept: 28

Defendant Ojore Weems’s Motion to Quash Service of Summons and Complaint

Having considered the moving papers, the Court rules as follows. 

BACKGROUND

On April 20, 2021, Plaintiffs Brandy Menard (“Menard”) and B.M. filed this action against Defendants City of Los Angeles (“City”) and Ojore Weems (“Weems”) for wrongful death, negligence, premises liability and survival.

On August 25, 2022, the City filed an answer. On September 16, 2022, the City filed a Cross-Complaint against Cross-Defendant Weems for indemnification, apportionment of fault and declaratory relief.

On October 24, 2022, Weems filed a Motion to Quash Service of Summons to be heard on January 27, 2023.

Trial is currently scheduled for May 31, 2023.

PARTY’S REQUESTS

Weems requests the Court quash service of summons and cross-complaint.

LEGAL STANDARD

A plaintiff has the initial burden to establish valid statutory service of a summons and complaint. (Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439-40; Floveyor Internat. v. Sup. Ct. (1997) 59 Cal.App.4th 789, 794.) 

A defendant may file a motion to quash a service of summons on the ground of lack of jurisdiction of the court over said defendant. CCP § 418.10 (a). A motion made under CCP § 418.10 does not constitute an appearance unless a court denies the motion.

“Although a proper basis for personal jurisdiction exists and notice is given in a manner which satisfied the constitutional requirements of due process, service of summons is not effective and the court does not acquire jurisdiction of the party unless the statutory requirements for service of summons are met.” (Engebretson & Co. v. Harrison (1981) 125 Cal. App. 3d 436, 443.)

CCP 415.20(b) provides: “If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

DISCUSSION

Weems did not file a proof of service for the motion. Under CPP §1005, written notice must be given for a Motion to Quash Summons. The Court is unaware if Weems served the motion, but failed to file proof of service, or did not serve the motion on other appearing parties. The Court continues the motion so that Weems can provide proof of service, as well as the new date.

CONCLUSION

Defendant Ojore Weems’s Motion to Quash Service of Summons and Complaint is CONTINUED to March 2, 2023, at 1:30 p.m. in Department 28 of the Spring Street Courthouse.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.