Judge: Douglas W. Stern, Case: 23STCV03450, Date: 2023-04-14 Tentative Ruling

Case Number: 23STCV03450    Hearing Date: April 14, 2023    Dept: 68

APB PROPERTIES, LLC v. JEFF KERN, 23STCV03450

Motion to Compel Arbitration filed by Plaintiff

Plaintiff APB Properties, LLC has filed a Motion to Compel Arbitration. It appears that this motion was not properly served pursuant to Code of Civil Procedure § 1013 and must therefore be continued.

This Complaint was filed February 16, 2023. On March 13, 2023 Plaintiff filed a Proof of Service of Summons showing that Defendant Jeff Kern was personally served with the summons and complaint and related additional documents, BUT NOT WITH THE MOTION TO COMPEL ARBITRATION, on March 7, 2023.

The Motion to Compel Arbitration was filed March 14, 2023. As of that date, Defendant Kern had not yet appeared in the action. As of this writing, he still has not appeared in this action. The Proof of Service by Mail attached to the Motion shows that on March 14, 2023 Plaintiff served the Motion by mail on Defendant Jeff Kern at 3280 Bennett Drive, Hollywood, CA 90068.

Since service was accomplished by mail, it is governed by Code of Civil Procedure § 1013.

“(a) In case of service by mail, the notice or other paper shall be deposited in a post office, mailbox, subpost office, substation, or mail chute, or other like facility regularly maintained by the United States Postal Service, in a sealed envelope, with postage paid, addressed to the person on whom it is to be served, at the office address as last given by that person on any document filed in the cause and served on the party making service by mail; otherwise at that party's place of residence.”  Code Civ. Proc., § 1013.  (Bold added.)

Obviously, since Defendant Kern has not yet appeared in this action, the Motion could not be addressed to him “at the office address last given by that person on any document filed in the cause.” Therefore, in order for the mail service to be valid, it must have been made on Defendant at his place of residence.

No evidence has been presented to the Court to identify the place of residence of defendant Kern.

The Motion to Compel Arbitration is continued to a date to be set at the hearing. Plaintiff is required to properly serve the Motion to Compel Arbitration in a timely manner on Defendant Jeff Kern.