Judge: Holly J. Fujie, Case: 21STCV46906, Date: 2022-09-02 Tentative Ruling

Case Number: 21STCV46906    Hearing Date: September 2, 2022    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant California Herbal Remedies, Inc. (“Moving Defendant”)

RESPONDING PARTY: Plaintiff

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

BACKGROUND

On December 23, 2021, Plaintiff initiated this action by filing a complaint (the “Complaint”) alleging claims which arise out of an employment relationship.  On January 21, 2022, Plaintiff filed a proof of service indicating that Moving Defendant was served with the Complaint and summons on January 14, 2022.  Moving Defendant did not file an answer and its default was entered on May 11, 2022.  Also on May 11, 2022, Moving Defendant filed a motion to quash service of summons (the “Motion”) on the grounds that it was not properly served with the Complaint and summons.

DISCUSSION

Under California Code of Civil Procedure (“CCP”) section 418.10, a defendant, on or before the last day of their time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction over them.  (CCP § 418.10, subd. (a)(1).)  A court lacks jurisdiction over a party if there has not been proper service of process.  (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)  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.)  The filing of a proof of service creates a rebuttable presumption that the service was proper but only if it complies with the statutory requirements regarding such proofs.  (Id. at 1441-42.)  When a defendant moves to quash service of the summons and complaint, the plaintiff has the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.  (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) 

            The entry of a default terminates a defendant’s rights to take any further affirmative steps in the litigation until either the default is set aside or a default judgment is entered.  (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.)  A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff’s right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.  (Id. at 385-86.) 

            Since Moving Defendant’s default has been entered, it lacks standing to bring the Motion.  Moving Defendant must first move to set aside the default.  The Court therefore DENIES the Motion.  In the interest of efficiency, the Court recommends that the parties stipulate to set aside the default and that Moving Defendant accepts service of the Complaint since it has actual notice of this proceeding.

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 2nd day of September 2022