Judge: David B. Gelfound, Case: 23CHCV02609, Date: 2024-02-26 Tentative Ruling

Case Number: 23CHCV02609    Hearing Date: March 8, 2024    Dept: F49

Dept. F49 

Date: 3/8/24

Case Name: Jane Doe v.

Jose Arriaga, et al.

Case #23CHCV02609

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO QUASH SERVICE OF SUMMONS

Motion filed: 10/3/23

MOVING PARTY: Special appearing Mr. Jose G. Arriaga (“Mr. Arriaga Senior”)

RESPONDING PARTY: Plaintiff Jane Doe (“Plaintiff”) 

NOTICE: ok 

RELIEF REQUESTED: An order to quash the service of summons on Mr. Arriaga Senior

TENTATIVE RULING: The motion is DENIED AS MOOT.

BACKGROUND

On August 30, 2023, Plaintiff initiated this action against Defendants Magic Mountain, LLC, Jose Arriaga (“Mr. Arriaga Junior”), and Does 1 through 50. The Complaint alleges 12 causes of action: (1) sexual battery/abuse of a minor; (2) intentional infliction of emotional distress; and (3) sexual harassment; (4) negligent hiring, supervision & retention of an unfit employee; (5) negligent failure to warn, train or educate; (6) negligent supervision of a minor; (7) negligence; (8) retaliation in violation of the FEHA; (9) retaliation under Labor Code §§ 98.6, 1102.5; (10) sexual harassment in violation of FEHA; (11) discrimination in violation of FEHA; and (12) failure to prevent harassment and discrimination in violation of FEHA.

On October 3, 2023, special appearing Mr. Arriaga Senior filed the instant Motion to Quash Service of Summons on him, asserting that he is not the intended Defendant Mr. Arriaga Junior. (Arriaga Decl., ¶ 3.)

On February 26, 2024, Plaintiff opposed the Motion. Subsequently, Mr. Arriaga Senior replied on February 29, 2024.

ANALYSIS

“A defendant, on or before the last day or 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. . . (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.) (Underlines added.)

“A motion to quash service of summons lies on the ground that the court lacks personal, not subject matter, jurisdiction over the moving party.” (Greener v. Workers’ Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1036.)  

            “When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) 

Under certain circumstances, service is authorized 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 in the presence of a competent member of the household; and thereafter mailing additional copies to defendant. (Code Civ. Proc., § 415.20, subd. (b).) However, in using substitute service for individual, as opposed to entity, defendants, a plaintiff must show a good faith effort at personal service (“reasonable diligence” requirement) must first be attempted. (Ibid.) “Ordinarily. . . two or three attempts at personal service at a proper place should fully satisfy the requirement of reasonable diligence and allow substituted service to be made." (Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1391-1392, internal quotations and citation omitted.) 

A.    Limited Scope Representation in Special Appearing

On October 3, 2023, counsel Mr. David Russomanno (“Counsel”) filed a Notice of Limited Scope Representation (Form “CIV-150”), indicating that his representation is limited to special appearing for “Jose G. Arriaga,” and “only on matters and appearances related to the Special Appearing Jose Arriaga’s Motion to Quash.” (CIV-150, ¶¶ 1, 2c.)

The Court acknowledges that Counsel’s representation is solely for Mr. Arriaga Senior based on the filed CIV-150 form. Importantly, Counsel is not authorized to present legal arguments on behalf of Mr. Arriaga Junior, who is not the moving party and is not represented by Counsel at the time of the filing.

Consequently, the Court deems any arguments made on behalf of Defendant Mr. Arriga Junior to be procedurally improper and irrelevant.

B.     Motion to Quash

Mr. Arriaga Senior contends that Plaintiff failed to properly serve him personally or through substitute service when the process server left case documents on his property at 27758 Walnut Spring Ave., Canyon Country, CA, 91351 (“Canyon Country address”) on September 3, 2023. (Arriaga Decl., ¶ 3.) He argues that he is the “wrong Jose Arriaga” as he had never worked at Magic Mountain. (Mot. at 1.) Moreover, in his Reply, Mr. Arriaga Senior states that he informed the process server that the intended Defendant, Mr. Arriaga Junior, no longer lived at this address and had moved out of state. (Reply, at 3.)

In response, Plaintiff acknowledges that Defendant Mr. Arriaga Junior’s full name is Jose Antonio Arriaga, noting that he shares the same first and last name as his father, Mr. Arriaga Senior. (Opp’n., at 1.) Nonetheless, Plaintiff argues that Mr. Arriaga Senior’s Motion is moot because Mr. Arriaga Senior was not the defendant, and service on Defendant Mr. Arriaga Junior was successfully completed on November 3, 2023, subsequent to the filing of the instant Motion.

The Court agrees with the Plaintiff that, even if the service on September 3, 2023, is unsuccessful, it is undisputed that Mr. Arriaga Senior is not the intended defendant; rather, the service of process was aimed at his son, Defendant Mr. Arriaga Junior. Furthermore, as outlined above, any arguments related to the subsequent services of process, which occurred on October 3 and October 31, 2023, must be brought forward by the proper party, Defendant Arriaga Junior.

It is clear in the Motion that Mr. Arriaga Senior moves under the authority of Code of Civil Procedure section 418.10 which provides, in relevant part, “[a] defendant, ... 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.” (Underlines added.) Considering Mr. Arriaga Senior is not a defendant in the present case, section 418.10 is inapplicable.

Accordingly, the Court DENIES AS MOOT the Motion to Quash. 

CONCLUSION

Special appearing Mr. Jose G. Arriaga’s Motion to Quash Service of Summons is DENIED AS MOOT.

Moving party to give notice of this order.