Judge: Frank M. Tavelman, Case: 19BBCV01129, Date: 2023-03-10 Tentative Ruling

SUBMITTING
ON THE TENTATIVE

The Court tries to post tentative rulings prior to any
hearing on many matters, but not all.  If
the parties wish to submit on the tentative ruling and avoid a court
appearance, all counsel must confer and agree to do so.   Each counsel must contact the court and
advise they are submitting on the matter, that they have spoken to opposing
counsel who has indicated they too are submitting and will be calling the
court. All submitting counsel must call Dept A by 9:00 a.m. on the day of the
hearing and state that all parties will submit on the tentative ruling or in lieu
may indicate the party is submitting during calendar check-in and notice of the
ruling must be served as indicated in the tentative. If any party declines to
submit on the tentative ruling, then no telephone call is necessary, and all
parties should appear at the hearing in person or remotely.

Case Number: 19BBCV01129    Hearing Date: March 10, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO QUASH SERVICE OF PROCESS

ALLEGATIONS: 

The instant action arises from an alleged insurance agreement between Anoush Semerdjian (“Plaintiff”) and Mercury Insurance Company (“MIC”) and Mercury Insurance Group (“MIG”) (collectively, “Defendants”). Plaintiff contends she purchased a homeowner’s insurance policy (“Policy”) from Defendants prior to April 7, 2018, that covered her pets. (SAC ¶¶6, 7.)  Plaintiff asserts that on April 7, 2018, Plaintiff’s dog escaped the property and subsequently bit Lode Margolis who sustained substantial injury. (SAC ¶9.) Plaintiff believes that these injuries were a covered loss under the Policy.

Plaintiff filed her initial Complaint on December 15, 2019, and her First Amended Complaint (“FAC”) on July 8, 2020. Plaintiff filed her Second Amended Complaint (“SAC”) on January 5, 2021 but failed to name California Automobile Insurance Company (“Cal Auto”) as a defendant. Plaintiff served an “Amendment to Complaint” that was unsigned by the Court on Cal Auto, despite the Court having signed such an Amendment on July 1, 2022.  This served Amendment to the Complaint, named Cal Auto as Doe 1, but was unsigned by the Court and was contrary to the July 1, 2022, amendment approved by the Court.  The Summons on the SAC was issued December 2, 2022 but failed to included the corrected name pursuant to the July 1, 2022 amendment approved by the Court.  On January 25, 2023, Plaintiff filed a Third Amended Complaint (“TAC”) which now names Cal Auto.

HISTORY: 

The Court previously granted Cal Auto’s motion to Quash Service of Summons on the SAC. (See December 2, 2022 Minute Order.) In its prior ruling, this Court found that Plaintiff failed to produce evidence of service of the amended summons upon Cal Auto. As such, the Court found that it lacked jurisdiction over Cal Auto.

Plaintiff on December 2, 2022 filed a summons on the Second Amended Complaint. This new summons names Cal Auto as a defendant to the action. On December 27, 2022, Plaintiff filed proof of service by substituted service.

On January 30, 2023, Cal Auto filed this motion to quash service of summons. Plaintiff filed no Opposition.

ANALYSIS: 

I.                    LEGAL STANDARD 

‘Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.’ [Citation.]”  (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.)  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.) 

“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.) 

“Evidence Code section 647 provides that a registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration.  [Citation.]”  (American Express Centurion Bank v. Zara (2011) 199¿Cal.App.4th 383, 390; Evid. Code § 647.) 

II.                 MERITS

As previously stated, the Court granted a motion to Quash Service of Summons as to Cal Auto on December 2, 2022. Plaintiff then filed an amended summons and served Cal Auto once again. Cal Auto now moves to Quash Service of Summons because the service they received on December 27, 2022 did not contain the amended summons filed with the court.

Cal Auto submits a declaration of Tod Castronovo, Esq.  The Court notes that paragraph two of the declaration states that this dispute arises out of a “water loss reported by the plaintiff on January 21, 2018.” (Decl. Castronovo ¶2).   That appears to be inconsistent with the Second Amended Complaint at issue here involving a dog mauling.  Cal Auto submits the declaration of Dorine Laverde, which states that Cal Auto was served by substitute service on December 27, 2022. (Laverde Decl. ¶ 3.) The Laverde declaration attaches as Exhibit B a copy of the papers that were served on that date. A review of the exhibit reveals that the summons served on Cal Auto on that date did not name Cal Auto as a defendant; effectively it appears that the Summons for the initial Complaint, which did not name Cal Auto was served on Cal Auto along with, the SAC and an unapproved Amendment to Complaint naming Cal Auto as Doe 1  Plaintiff did not serve the “Summons on the Complaint – Second Amended” on Cal Auto.  This does not appear to be in compliance with CCP §412.20 (Summons must name the defendant).  Regardless, the Summons on the Second Amended Complaint likewise did not name Cal Auto, and furthermore Plaintiff filed a Third Amended Complaint to name Cal Auto but has not yet served that complaint. 

The Court finds that the service of the summons on December 27, 2022 was insufficient to rectify the shortcomings of previous service. As, such the unopposed motion to quash service of summons is GRANTED.

--- 

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

California Automobile Insurance Company’s Motion to Quash Service of Summons came on regularly for hearing on March 10, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO QUASH SERVICE OF SUMMONS IS GRANTED. 

UNLESS ALL PARTIES WAIVE NOTICE, CALIFORNIA AUTOMOBILE INSURANCE COMPANY IS TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE: March 10, 2023                                  _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles