Judge: Daniel M. Crowley, Case: BC707278, Date: 2023-05-11 Tentative Ruling

Case Number: BC707278    Hearing Date: May 11, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Specially Appearing Defendants Doe #3’s and Diet Madison Avenue’s motion to quash Plaintiff Ralph M. Watson’s service of summons and complaint is granted. 

Specially Appearing Defendants Doe #3 (“Doe #3) and Diet Madison Avenue (“DMA”) (collectively, “Defendants”) move for an order quashing service of the summons and fist amended complaint (“FAC”) of Plaintiff Ralph M. Watson (“Watson”) (“Plaintiff”) on the basis the documents were improperly served on Specially Appearing Defendants’ counsel of record who has no authority to accept service.  (Notice of Motion, pg. 2; C.C.P. §418.10(a).) 

In his first amended complaint (“FAC”), filed February 25, 2019, Plaintiff alleges fives causes of action for (1) defamation, (2) intentional interference with contractual relations, (3) intentional interference with prospective economic relations, (4) civil conspiracy, and (5) negligent interference with prospective economic relations stemming from allegations published on a public Instagram account named dietmadisonavenue in early January 2018 accusing Plaintiff of being a sexual harasser and relating to Plaintiff’s employment with Crispin, Porter + Bogusky (“CP+B”) as the Chief Creative Officer of their Boulder Colorado office.  (See FAC.)  On August 15, 2022, Plaintiff filed proofs of service of the summons and FAC by substituted service on Specially Appearing Defendants at Specially Appearing Defendants’ counsel’s office on June 10, 2022.  Specially Appearing Defendants’ counsel contacted Plaintiff’s counsel indicating that he received electronic notice of the proofs of service, but indicated he was not a registered agent and is not authorized to receive service.  (Decl. of Dorny ¶5.)  Plaintiff’s counsel refused to withdraw the proofs of service.  (Decl. of Dorny ¶¶6, 8.)

Specially Appearing Defendants filed the instant motion on September 6, 2022.  Plaintiff filed his opposition on April 28, 2023.  Specially Appearing Defendants filed their reply on May 4, 2023.

Motion to Quash

C.C.P. §418.10(a) provides, in pertinent part, as follows: “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.”

Without proper service, the court never acquires jurisdiction over the defendant. (C.C.P. §418.10(a)(1); Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1150; Schering Corp. v. Superior Court (1975) 52 Cal.App.3d 737, 741; Sternbeck v. Buck (1957) 148 Cal.App.2d 829, 832.)  If legal papers are not served in strict compliance with C.C.P. §§415.10, 416.90, and 416.10-416.80, et seq., a judgment is void as the court lacks jurisdiction.  (See Ellard v. Conway (2001) 94 Cal.App.4th 540; Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1239.)

“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. 4th 1426, 1439-1440, citations and fn. omitted.)

          Plaintiff has not established that he has made effective service of moving Defendant.  The proof of such service is that Devon Fitzgerald left a summons and complaint, etc. with an unknown security officer at an unidentified location and that Mr. Fitzgerald then mailed a copy of the summons and complaint, etc. to A. Louis Dorney at 633 W. 5^th Street, 52 Floor, Los Angeles, CA 90071.  (The Court will note that it is familiar with this address as being that of the U. S. Bank Building, an office building with a multitude of tenants.)  Plaintiff has not established that the summons was properly executed so as to put its recipient on notice of the capacity in which the recipient was purportedly being served, nor that an amendment to the complaint identifying who was being served as Doe 3 was included in the purported service.  Nor has Plaintiff established that Mr. Dorney was authorized to accept service on behalf of Doe 3.  Accordingly, Plaintiff has not established that service was made on Doe 3.

Therefore, Plaintiff’s argument that Specially Appearing Defendants’ motion is untimely is unavailing.  Plaintiff argues the motion is untimely because it was not brought within the required 30-day period to plead after service, resulting in a waiver of the issues of lack of personal jurisdiction and inadequacy of service of process.  (Opposition, pg. 3; C.C.P. §418.10(e)(3); see Roy v. Superior Court (2005) 127 Cal.App.4th 337, 344-345.)  The motion is not untimely because Plaintiff has not established that proper service was ever made. 

          This Court has previously determined that Specially Appearing Defendants have not made a general appearance in this case and have not previously been served.  (2/1/19 Ruling.)  Plaintiff’s citations to Estate of Moss, Summers v. McClanahan, Warner Brothers Records, Inc. v. Golden West Music Sales, and Pasadena Medi-Center Associates v. Superior Court of Los Angeles are inapposite and do not overcome the statutory requirement that service of summons on an individual is made “by personal delivery of a copy of the summons and of the complaint to the person to be served” and service on an entity may be accomplished by delivering a copy of the summons and of the complaint to such person or to a person authorized by him to receive service of process.”  (C.C.P. §§415.10, 416.90.)  

Only where the attorney is an “agent” for the served defendants have courts found that service on an attorney constitute proper service; the clients must “ostensibly h[o]ld [the attorney] out as their agent.”  (Warner Bros. Records v. Golden West Music Sales (1974) 36 Cal.App.3d 1012, 1019.)  Ostensible authority is not established by statements and representations of agent; it is created only by acts or declarations of principal.  (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1438 n.11.)  Specially Appearing Defendants’ counsel and their attorney have not made a general appearance in this case not have they authorized Counsel Dorney as an agent to accept service.  (Decl. of Dorny ¶2.)  Therefore, this Court cannot determine that service is sufficient on the basis of a “close connection” or “sufficiently close and enduring” relationship between Specially Appearing Defendants and their counsel. 

Based on the foregoing, Specially Appearing Defendants’ motion to quash service of summons and complaint is granted.

Dated:  May _____, 2023

Hon. Daniel M. Crowley

                                        Judge of the Superior Court