Judge: Frank M. Tavelman, Case: 21STCV27254, Date: 2024-01-05 Tentative Ruling

Case Number: 21STCV27254    Hearing Date: March 8, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO QUASH & MOTION FOR UNDERTAKING

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Yuqin Liu (Plaintiff) brings this action against Beverly Hills New Life Medical Group, LLC (New Life), Ling M. Smith (Smith), and Cici Yun Zhang (Zhang) (collectively Defendants). Plaintiff alleges that Defendant negligently administered derma filler injections which resulted in personal injury.

Before the Court are two motions. Defendants all move to quash service of the summons upon each of them for defective service. New Life individually moves to require Plaintiff, an out of state resident, to file an undertaking pursuant to C.C.P. § 1030. Plaintiff has rendered no opposition to either of these motions.

ANALYSIS:

I.            LEGAL STANDARD

Motion to Quash Service

“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 [internal quotations marks and citation omitted].)  “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.  (C.C.P. § 418.10(a)(1).)  A defendant has 30 days after the service of the summons to file a responsive pleading.  (C.C.P. § 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.)

Motion for Undertaking

In an action or special proceeding brought by a nonresident plaintiff, the defendant at any time may move for an order requiring the plaintiff to post security. (C.C.P. § 1030(a).) The stated grounds for the motion are that the plaintiff resides out of state or is a foreign corporation, and there is a reasonable possibility that the moving defendant will obtain a favorable judgment. (C.C.P. § 1030(b).) The motion can be brought at any time. (C.C.P. § 1030(a).) The trial court has no authority to deny the motion on the ground that it is untimely. (Heffron v. Los Angeles Transit Lines (1959) 170 Cal.App.2d 709.)

The notice of motion must be served in accordance with C.C.P. § 1005(b) and must be accompanied by a supporting declaration establishing the stated grounds and the nature and amount of the attorney fees and costs the defendant expects to incur until the action is concluded. (C.C.P. § 1030(b).) It must also be accompanied by a memorandum of points and authorities. (C.C.P. § 1030(b); CRC Rule 313(a).)

The plaintiff may oppose a motion for security under a number of theories: (1) proof that the plaintiff is not a nonresident, (2) a showing of plaintiff's indigency, or (3) demonstrating defendant's failure to make an adequate prima facie showing of a reasonable possibility of success in the action. (C.C.P. § 995.240.) Furthermore, even if adequate grounds exist for granting the motion for security, the plaintiff can still challenge the defendant’s requested costs and attorney fees. The security can be ordered only for “reasonable” costs and attorney fees, and the defendant must be otherwise entitled to recover those fees by contract or by another statutory provision. (C.C.P. § 1030(a).)

If the motion is granted, the plaintiff shall file the undertaking no later than 30 days after service of the Court’s order requiring it, and if plaintiff fails to file the undertaking within the time allowed, the plaintiff's action shall be dismissed as to the moving defendant. (C.C.P. § 1030(d).)

II.            MERITS

Motion to Quash Service

The Court notes that the proofs of service for each Defendant are identical in content. Defendants were purportedly served by substitute service on November 28, 2023. The address for service is listed 310 W. Huntington Dr. Arcadia, CA 91007. The process server’s affidavit attests that they left the documents with someone named Hayden who was apparently in charge of the office. Notice was also mailed thereafter.

The Court first addresses the motion as it is brought by New Life. On January 8, 2024, New Life filed an Answer in this matter on January 17, 2023 and to the First Amended Complaint on January 8, 2024.  They filed the motion to quash on February 2, 2024. A party waives any objection to the court's exercise of personal jurisdiction when the party makes a general appearance in the action. An answer is such an appearance, as is expressly made clear by C.C.P., § 1014, which states that a defendant appears in an action when the defendant answers, demurs, or files a notice of motion to strike.  (Roy v. Superior Court (2005) 127 Cal. App. 4th 337)

New Life has also filed numerous discovery related motions and deposed Plaintiff. C.C.P. § 418.10(a)(1) is clear that a motion to quash service of a summons must be made before a responsive pleading is filed. New Life cannot file an Answer, constituting a general appearance, and then subsequently move to quash service. Accordingly, the motion to quash as to New Life is DENIED.

As concerns Smith and Zhang, neither of these Defendants have filed an Answer in the action. Defendants argue that service via substitute service was ineffective for a myriad of reasons. Defendants state that the address for service does not actually exist. (Palin Decl. ¶ 1.) Further, if service was rendered at the correct address, 301 W. Huntington Dr., Defendants argue that the proof of service is insufficient to identify substitute service on defendants. Defendants argue that 301 W. Huntington is a six-story office building, and the proof of service does not identify a suite number. (Palin Decl. ¶ 2.)

The proof of service indicates to the Court that some compliance was made such that service may be deemed adequate. “It is axiomatic that strict compliance with the code's provisions for service of process is not required. (Ramos v. Homeward Residential, Inc., 223 Cal. App. 4th 1434, 1443.) “[I]n 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.” (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313.) In essence, substantial compliance with the code’s requirements for service of process is sufficient. (Id.) 

Here, it appears there was a defect in service is a typographical error on the building number and the failure to identify the suite number where substitute service was rendered. No facts exist by which the Court can determine that Smith and Zhang received actual notice of the action because Plaintiff did not file an opposition.  Failure to file an opposition to the motion indicates the other parties' acquiescence that the motion is meritorious. CRC Rule 8.54(c).   It remains Plaintiff’s burden to prove the facts requisite to effective service. By virtue of her failure to oppose this motion, Plaintiff has failed to carry her burden.

Accordingly, the motion to quash service as to Smith and Zhang is GRANTED.

Motion for Undertaking

New Life submits evidence that Plaintiff is a resident of the State of Nevada, based on her deposition testimony.  (Palin Decl. Exh. A.) New Life also submits facts indicating a reasonable probability of success. New Life submits that Plaintiff has testified at her deposition that she does not know the name of the company which administered the derma filler injections and that she does not have evidence that the person who administered the injections was not a nurse. (See Id., Plaintiff Depo 95:10 – 96:4 & 97:16-18.) New Life also asserts that Plaintiff’s negligence action is time barred, as she filed the action after the one-year statute of limitations had run. (Mot. p. 6.) Lastly, New Life submits that Plaintiff has no evidence of a false, misleading, or fraudulent statement made by New Life. (Palin Decl. Exh. A., Plaintiff Depo. 89:19 – 90:4.)

Plaintiff, having rendered no opposition, has not demonstrated that any exception to an undertaking should apply here. Plaintiff has not disputed her residency status, indicated her indigency, or made any showings refuting New Life’s prima facie case. As cited supra, failure to file an opposition to the motion indicates the other parties' acquiescence that the motion is meritorious. CRC Rule 8.54(c) accordingly, the motion for undertaking is GRANTED.

New Life attaches a breakdown of the fees already incurred and the fees it anticipates incurring should the matter proceed to trial, which total $24,895. (See Palin Decl. ¶ 4.) The Court notes that the accounting includes “Sanctions Awards” in connection with New Life’s discovery motions. Given the Court has already issued order awarding these sanctions, their inclusion in the amount required for an undertaking appears duplicative. If New Life is not being paid the sanctions pursuant to the Court’s orders, such is the matter for a separate motion to enforce that order. Accordingly, the Court shall require an undertaking be filed by Plaintiff in the amount of $21,895. Plaintiff’s undertaking shall be filed within 30 days of service of this order upon her.

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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 

Beverly Hills New Life Medical Group, LLC, Ling M. Smith, and Cici Yun Zhang’s Motion to Quash Service and Beverly Hills New Life Medical Group, LLC’s Motion for Undertaking came on regularly for hearing on March 8, 2024, 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: 

NEW LIFE’S MOTION TO QUASH IS DENIED.

SMITH AND ZHANG’S MOTION TO QUASH IS GRANTED.

THE MOTION FOR UNDERTAKING IS GRANTED. PLAINTIFF IS TO FILE AN UNDERTAKING FOR $21,895 WITHIN 30 DAYS OF SERVICE OF THIS ORDER PURSUANT TO CCP §1030(D).

OSC RE UNDERTAKING IS SCHEDULED FOR APRIL 15, 2024 AT 9:00 AM.

UNLESS ALL PARTIES WAIVE NOTICE, NEW LIFE TO GIVE NOTICE.