Judge: Holly J. Fujie, Case: 21STCV06450, Date: 2023-01-03 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. 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 by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 21STCV06450    Hearing Date: January 3, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AND RELATED CROSS-ACTION

MOVING PARTY: Specially Appearing Defendant Estate of George E. Gutierrez (“Moving Defendant”)

RESPONDING PARTY: Plaintiffs

The Court has considered the moving, opposition and reply papers. 

BACKGROUND

This action arises out of a landlord/tenant relationship.  On February 17, 2021, Plaintiffs filed a complaint (the “Complaint”) alleging: (1) breach of implied warranty of habitability; (2) breach of statutory warranty of habitability; (3) breach of the covenant of quiet enjoyment; (4) negligence; (5) violation of Civil Code section 1942.4; and (6) private nuisance.

On November 28, 2022, Moving Defendant filed a motion to quash (the “Motion”) on the ground that the Court lacks jurisdiction because it was never properly served with the Complaint and Summons.

REQUEST FOR JUDICIAL NOTICE

            Moving Defendant’s Request for Judicial Notice is GRANTED to the existence of the documents, but not to the truth of the matters stated therein.

DISCUSSION

Under California Code of Civil Procedure (“CCP”) section 418.10, subdivision (a), a defendant may serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the court over him or her.  (CCP § 418.10, subd. (a).)  Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction.  (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)  Where there has been substantial compliance, strict compliance with statutory provisions for service of process is not required.  (Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1442.)  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.)

Generally, an action against a decedent’s personal representative may only be continued if a claim is first filed with and rejected by the decedent’s personal representative.  (See CCP § 377.41; Prob. Code § 9370.)  A probate claim is not required, however, to maintain a civil action for an obligation of the decedent to the extent it is covered by the decedent’s liability insurance.  (Estate of Prindle (2009) 173 Cal.App.4th 119, 128-29; see also Prob. Code § 9390.) 

Probate Code section 550 provides an action to establish a decedent’s liability for which the decedent was protected by insurance may be commenced or continued against the decedent’s estate without the need to join as a party the decedent’s personal representative or successor in interest.  (Prob. Code § 550, subd. (a).)  Probate Code section 552 provides that an action under this chapter shall name as the defendant, “Estate of (name of decedent), Deceased.”  (Prob. Code § 552, subd. (a).)  Summons shall be served on a person designated in writing by the insurer or, if none, on the insurer.  (Id.)  Further proceedings shall be in the name of the estate, but otherwise shall be conducted in the same manner as if the action were against the personal representative.  (Id.) 

            On May 25, 2022, Plaintiffs filed an amendment to the Complaint identifying Moving Defendant as “Doe 1.”  On July 21, 2022, Plaintiffs filed a proof of service (the “POS”) stating that Mark Neiman (“Neiman”), the Vice President of Crusader Insurance Company (“Crusader”) was served with the Complaint as Moving Defendant’s “responsible party.”  The POS does not identify the statutory basis for effectuating service.    

On October 10, 2022, Plaintiffs filed a request for default against Moving Defendant, which the clerk denied on October 11, 2022 in part because the proof of service did not state whether the individual served was an authorized agent.  On November 28, 2022, Plaintiffs filed an amended proof of service (the “Amended POS”) which states that Neiman was served as  Moving Defendant’s agent under Probate Code sections 550 through 555.  The POS and Amended POS were both executed on May 31, 2022 by Kristina Banfield (“Banfield”), who is identified as a registered California process server.

Jennifer Ziegler (“Ziegler”) is Crusader’s only designated agent for service of process.  (Declaration of Jennifer Ziegler (“Ziegler Decl.”) ¶ 1.)  Ziegler declares that she was never served with the Summons and Complaint in this action.  (Ziegler Decl. ¶ 3.) 

Plaintiffs’ Opposition provides a supplemental declaration from Banfield.  (See Declaration of Paul Christensen (“Christensen Decl.”) ¶ 3, Exhibit B.)  Banfield declares that when she contacted Crusader’s office on May 31, 2022 to inquire about Ziegler’s availability, a receptionist informed her that Ziegler was not in the office.  (See Exhibit B.)  Banfield entered the office, where she met Neiman, who informed her that he was not authorized to accept service.  (Id.)  Neiman refused to accept service and Banfield left the documents on a desk.  (Id.) 

It is not disputed that Plaintiffs did not comply with Probate Code section 552 because Crusader’s agent, Ziegler, was not served.  Plaintiffs argue that service was nonetheless adequate to establish jurisdiction because Crusader was served in compliance with CCP section 416.10, subdivision (b), which allows a vice president of a corporation to receive service of process.  While the Court agrees that if Crusader were itself a defendant, service on Neiman would have been appropriate pursuant to CCP section 416.10; here, Crusader is being sued as Moving Defendant’s insurer.  The Amended POS identifies Probate Code sections 550 through 555 as the bases for Neiman’s authority to accept service on Moving Defendant’s behalf as its designated agent.  These provisions do not provide for service on a Vice President if the insurer has a designated agent for service of process, as is the case here.  The evidence indicates that Plaintiffs made one attempt to serve Ziegler with the Complaint immediately before leaving the documents with Neiman.  The Court therefore finds that service was insufficient and GRANTS the Motion.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing. 

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

Dated this 3rd day of January 2023