Judge: Gail Killefer, Case: 20STCV17157, Date: 2023-12-07 Tentative Ruling

Case Number: 20STCV17157    Hearing Date: March 19, 2024    Dept: 37

HEARING DATE:                 Tuesday, March 19, 2024

CASE NUMBER:                   20STCV17157 (Lead Case)

                                                20GDCV00556 (Consolidated Case)

CASE NAME:                        Lucia C. Early v. John D. Early

MOVING PARTY:                 Special Appearing Defendant Alexander Early

OPPOSING PARTY:             Plaintiffs Lucia C. and Elizabeth C. Early

TRIAL DATE:                        Not Set

PROOF OF SERVICE:           OK

PROCEEDING:                      Motion to Quash Service of Summons and FACC, Motion to Stay and/or Dismiss Action due to Forum Non-Conveniens

OPPOSITION:                        27 February 2024

REPLY:                                  4 March 2024

TENTATIVE:                         Special appearing Defendant Alexander Early’s motion to quash service of summons on FACC is granted. Defendant to give notice.

Background

This is a family dispute arising in connection with real property located at 336 Flintridge Oaks Drive, La Canada-Flintridge, California, 91011 (the “Property”). Plaintiff Lucia Early (“Lucia”) alleges that she is the sister of Defendant, John D. Early (“John”) and that both, in addition to Elizabeth V. Early (“Elizabeth”), were the surviving children of Mary C. Early. (“Mary”) Mary was born on October 2, 1930, and thus, allegedly qualifies as an elder for purposes of the Elder and Dependent Adult Protection Act.

Lucia alleges that on or about March 16, 2006, Mary, as the trustee of the Mary C. Early Trust dated December 14, 2005 (the “Trust”) took title to the property located at 366 Flintridge Oaks Drive, La Canada-Flintridge, California, assessor’s parcel number 5820-011-013 (the “Property”) and later restated the Trust to provide equally for her three children. Lucia alleges that despite Mary’s actions, John successfully demanded that she amend her Trust to exclude Lucia and transfer substantially all the interest in the Property to him. Thereafter, John allegedly removed Mary from the Property and moved her to live with relatives in Missouri, despite alleged assurances that Mary would be allowed to live in the Property for life.¿¿

Lucia’s Complaint, filed May 5, 2020, alleges six causes of action: (1) interference with expected inheritance against John, (2) fraud against John, (3) fraud against John, (4) constructive fraud against John, (5) injunction against John, and (6) restitution against John. 

On August 19, 2020, the court deemed this action related with John D. Early v. Lucia C. Early (LASC No. 20GDCV00556) (the “Related Action”) with the instant action deemed the lead action. John’s Complaint in the related action alleges seven causes of action: (1) intentional interference with contractual relations, (2) intentional interference with prospective economic relations, (3) breach of contract, (4) partition by appraisal of real property, (5) partition by sale of real property, (6) specific performance, and (7) declaratory relief.  

On December 4, 2020, Lucia filed the operative First Amended Complaint (“FAC”). The FAC alleges the same causes of action as the Complaint.   

On March 23, 2021, Lucia and Elizabeth (“Cross-Complainants”) filed the operative First Amended Cross-Complaint (“FACC”) in the Related Action, 20GDCV00556. The FACC alleges nine causes of action: (1) battery, (2) conversion, (3) statutory violation – theft, (4) elder abuse, (5) conversion, (6) statutory violation – theft, (7) restitution, (8) quiet title, (9) defamation. On March 24, 2021, the court deemed the Related Action consolidated with this action.

On March 13, 2023, Plaintiffs filed an Amendment to Cross-Complaint naming Roe 2 as Defendant Alexander R. Early V (“Alexander”). On December 21, 2023, Defendant Alexander moved to quash the Service of Summons of FACC and/or Dismiss the FACC on the grounds of forum non conveinens. Plaintiffs oppose the Motion. The matter is now before the court.

motion to quash service of summons OF facc

I.         Legal Standard

CCP § 418.10(a) states: “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 serve or file a motion…[t]o quash service of summon on the ground of lack of jurisdiction of the court over him or her.”¿¿¿ 

When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction.¿(State of Oregon v. Superior Court (1994) 24 Cal.App.4th 1550, 1557.)¿If the plaintiff meets his or her burden, the burden shifts to the defendant to demonstrate that the exercise of jurisdiction would be unreasonable. (Buchanan v. Soto (2015) 241 Cal.App.4th 1353, 1362. [“When a motion to quash is properly brought, the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.”].) This burden must be met by competent evidence in affidavits and authenticated documentary evidence. (Jewish Defense Org. v. Superior Court¿(1999) 72 Cal.App.4th 1045, 1055.) “A court may exercise specific jurisdiction over a nonresident defendant only if: (1) the defendant has purposefully availed himself or herself of forum benefits; (2) the controversy is related to or arises out of the defendant’s contacts with the forum; and (3) the assertion of personal jurisdiction would comport with fair play and substantial justice.” (Snowey v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.) 

II.        Request for Judicial Notice

 The court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.) A court may take judicial notice of contents of its own records. (Dwan v. Dixon (1963) 216 Cal.App.2d 260, 265; Foster v. Gray (1962) 203 Cal.App.2d 434, 439.) 

Defendant John and special appearing Defendant Alexander request judicial notice of the following:

Alleged Proof of Service of Summons filed on December 7, 2023, in Case No. 20STCV17157, consolidated with 20STCV00556 (Exhibit 1).

The court may take judicial notice of Exhibit 1, since it is the proof of service at issue in this Motion, but the court cannot take judicial notice of the purported facts Defendants insist are reflected in the proof of service: (1) R. Diefanbach is using her married name and her maiden name is Stroh; (2) her parents, Joseph and Lucia Stroh, are parties to this action, adverse to her uncle John Early; (3) she is the 1st cousin of Alexander Early; ( 4) the driving distance from her address on the alleged proof of service to Alexander's house is 495.2 miles round trip for a $100 fee; and (5) the phone number on the alleged proof is registered to her sister.

Since the court is judicially noticing the existence of the proof of service and not its truth, Defendants’ request for judicial notice is granted.

III.      Evidentiary Objections

Special appearing Defendant Alexander filed evidentiary objections:

Objection No. 1 is overruled. Defendants fail to show that R. Diefanbach is a party to this action and that even if R. Diefanbach does have an adverse interest in this action, the California Code. Civ. Proc. prohibits service by persons with interests adverse to that of a named party.

Objection No. 2 is sustained due to hearsay and lack of relevance.

Objection No. 3 is sustained due to hearsay and violation of the best evidence rule. The Declaration is trying to prove the contents of a writing, here what Defendant John said at his deposition, without providing a copy of said deposition.

IV.       Discussion

Plaintiffs assert that although discovery had ben cut-off in late summer of 2022, the parties had not completed the deposition of John Early prior to the discovery cut-off. (Cordier Decl. ¶ 3.) Plaintiffs assert that John’s deposition did not reconvene until March 8, 2023, wherein John allegedly admitted that his son drove the car. (Ibid.)

Accordingly, on March 13, 2023, the Plaintiffs filed an Amendment to the FACC, naming Alexander as Doe 2. The record of this action reflects that the Plaintiffs filed a proof of personal service on Alexander on December 17, 2023, with the service undertaken on October 31, 2023, and with the proof of service declaration signed by “R. Diefanbach” on November 16, 2023. Plaintiffs fail to explain why they delayed in serving the FACC on Alexander and filing the Proof of Service as Plaintiffs present no evidence that Alexander resisted service.

“The filing of a proof of service creates a rebuttable presumption that the service was proper. However, the presumption arises only if the proof of service complies with the applicable statutory requirements.” (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) CCP § 1011 lays out the requirements for personal service on a party. Specifically, section 1011(b)(1) states:

Any attempt of service upon a party at the party's residence shall be made between the hours of 8 a.m. and 8 p.m.

Here, the proof of service reflects the fact that the summons and other papers were served at Alexander’s residence at 8:05 pm. (POS filed 12/07/23.) Accordingly, the proof of service is facially deficient, and Plaintiff is not entitled to a rebuttable presumption that service was proper. The Declaration of R. Diefanbach asserts they consulted with the police department of Blacksburg, Virginia but fails to explain why the police department did not carry out the service, despite the police having had experience serving Defendant John. (R. Diefanbach Dec. ¶ 3.)

Second, nothing in the Declaration of R. Diefanbach rebuts Defendants’ evidence that Alexander was never served. When a defendant moves to quash service of summons on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction.¿(State of Oregon v. Superior Court (1994) 24 Cal.App.4th 1550, 1557.)¿If the plaintiff meets his or her burden, the burden shifts to the defendant to demonstrate that the exercise of jurisdiction would be unreasonable. (Buchanan v. Soto (2015) 241 Cal.App.4th 1353, 1362.)¿ 

Special appearing Defendant Alexander asserts that on Halloween (10/31/2023), he was doing schoolwork, did not leave the house, and was not served with any documents. (A. Early Decl. ¶ ¶ 4 , 5.) Alexander further asserts that the weekend before Tuesday, October 31, 2023, the street of his residence was being resurfaced and that since 2020, no trick-or-treater appeared on his street and his family does not celebrate Halloween. (A. Early Decl. ¶ 6.) Defendant John similarly declared that no one came to the house on October 31, 2023, the street was being resurfaced, and there were no Halloween trick-or-treaters or celebrations at the residence. (J. Early Decl. ¶¶ 3, 4.) On reply, Defendant John asserts that the process server, R. Diefanbach is Veronica R. Stroh, but Diefanbach is her married name. (Supp. J. Early Decl. ¶ 5.) Defendants assert that Diefanbach is the daughter of Joseph and Lucia Stroh who are parties in this action and have interests adverse to those of John. (See Ds’ Objection No. 2.) 

The court finds that the Plaintiffs have failed to meet their initial burden of showing that service was proper. Accordingly, the court need not decide if Defendant Alexander has sufficient minimum contacts with California. As discovery has been cut off, Plaintiffs failed to present admissible evidence to show that Alexader conspired with his father to steal property and has sufficient minimum contacts in California.

As the motion to quash service has been granted, the motion to stay or dismiss the action due to forum non conveniens is moot.

Conclusion

Special appearing Defendant Alexander Early’s motion to quash service of summons on FACC is granted. Defendant to give notice.