Judge: Edward B. Moreton, Jr., Case: 22SMCV00240, Date: 2023-01-12 Tentative Ruling

Case Number: 22SMCV00240    Hearing Date: January 12, 2023    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

BACKGROUND

            This action arises from alleged professional negligence in the provision of dental services to Plaintiff Cecil Elmore by Defendants Abbas Eftekhari D.D.S. and Eftekharis D.D.S., Inc. dba United Dental Care.  Specially appearing Defendants Leidy Andreina Vasquez and Gemma Panotes were employed by United Dental Care.  Plaintiff sued Vasquez and Panotes as Doe Defendants, alleging they performed dental procedures on Plaintiff even though they were not licensed.  The operative complaint alleges claims for general negligence and intentional tort.  Plaintiff is appearing pro per.    

This hearing is on Vasquez and Panotes’ motions to quash service of summons.  They argue that the service of the summons was defective for three reasons.  First, the summons was personally delivered to United Dental Care when they were no longer employees of United Dental Care.  Second, the summons failed to notify Defendants of the fictitious names under which they were being sued, in violation of Code Civ. Proc. §474.  Third, the proof of service refers to service of the summons and complaint when the operative documents are an Amended Summons and the Second Amended Complaint.             

LEGAL STANDARD

“Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.”  (AO Alfa-Bank v. Yakovlev (2018) 21¿Cal.App.5th 189, 202.)  “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential.”  (Kremerman v. White (2021). 71 Cal.App.5th 358, 371.) 

But the statutory requirements are to be liberally construed to uphold jurisdiction, rather than defeat it.  (Pasadena Medi-Center Assocs. v. Sup.Ct. (Houts) (1973) 9 Cal.3d 773, 778 (“The provisions of this chapter should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant, and in the last analysis the question of service should be resolved by considering each situation from a practical standpoint.”)

Defendant’s knowledge of the action does not dispense with statutory requirements for service of summons.  (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.)  However, as long as the defendant receives actual notice of the lawsuit, substantial compliance with the Code provisions governing service of summons will generally be held sufficient.  (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 410-411 ( “It is well settled that strict compliance with statutes governing service of process is not required.  Rather, in deciding whether service was valid, the statutory provisions regarding service of process should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant.”).)

“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 move “to quash service of summons on the ground of lack of jurisdiction of the court over him or her” that results from lack of proper service.  (Code of Civ. Proc. §418.10(a)(1).  A defendant has 30 days after the service of the summons to file a responsive pleading.  (Code Civ. Proc., §412.20(a)(3).)  

“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.) 

DISCUSSION

A plaintiff may serve a defendant through substitute service when it cannot be personally served with reasonable diligence. (Code Civ. Proc. §415.20(b).)  The plaintiff may effect substitute service of a summons and complaint by leaving a copy of the documents at the defendant’s “usual place of business” with a person at least 18 years old who is “apparently in charge of his or her office [or] place of business,” and thereafter mailing a copy of the documents to the same place. (Code Civ. Proc. §415.20(b).)

Here, Plaintiff served Vasquez and Panotes at United Dental Care on October 20, 2022.  Vasquez and Panotes aver they were no longer employed by United Dental Care at the time of service.  (Vasquez Decl. ¶3; Panotes Decl. ¶3.)  Plaintiff points to a supposed declaration by Vasquez dated November 10, 2022 that purportedly says she was an employee at 3909 Sepulveda Blvd., Culver City, California, the location of United Dental Care.  (Opp. at 3.)  But Plaintiff did not attach the declaration to his Opposition, and the Court has been unable to locate such a declaration.  Plaintiff has not met his burden of proving the existence of jurisdiction.  Accordingly, because United Dental Care was no longer Vasquez and Panotes’ usual place of business at the time of service, the service of summons on them is defective.          

Vasquez and Panotes also argue the summons is defective because it fails to notify them of the fictitious name under which they were sued, in violation of Code Civ. Proc. §474.  “Under Section 474, which governs the use of fictitious names in pleadings, a summons can be served on a fictitiously named defendant provided it contains the following advisement: ‘To the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the fictitious name of (designating it).’”  (Steciw v. Petra Geosciences, Inc. (2020) 52 Cal. App. 5^th 806, 812-813.)  The summons here did not contain this advisement and is therefore defective for this additional reason. 

Lastly, Vasquez and Panotes argue the service is defective because the proof of service refers to service of the “Summons” and “Complaint” when the operative documents are the Amended Summons and the Second Amended Complaint.  But Plaintiff has provided a declaration from his servicer that the actual documents served were the Amended Summons and the Second Amended Complaint.  (Hundal Decl. ¶4.)  Accordingly, the Court views this defect as a clerical error not justifying a motion to quash summons.  However, given the above material defects, the Court will grant Vasquez and Pantones’ motions to quash service of summons.   

CONCLUSION

            Based on the foregoing, the Court GRANTS Defendants Leidy Andreina Vasquez and Gemma Panotes’ motions to quash service of summons.

IT IS SO ORDERED.

DATED: January 12, 2023                                         ___________________________

                                                                                    Edward B. Moreton, Jr.

                                                                                    Judge of the Superior Court