Judge John C. Gastelum, Case 14-00761946 2022-07-26 Tentative Ruling

Judge: John C. Gastelum, Case: 14-00761946, Date: 2022-07-26 Tentative Ruling

Motion -- Other

Ruling: Off Calendar – no hearing will be held. Defendant, Rosemary Steinbrecher’s Motion to Determine the Status of the Estate of Rosemary Rolfe is DENIED, without prejudice.

Attached to the motion is a “Certificate of Service For Amended Motion For this Court to Determine Status of Estate of Rosemary Rolfes in This Civil Case.” (ROA 1140.) Rosemary Steinbrecher (“Steinbrecher”) states “under penalty of perjury, that she served the following persons in the manner shown on March 7, 2022”:

1) Christy Han, Stratman & Williams-Abrego at e-mail address “socal.legal@farmersinsurance.com.

2) Carrie Heieck at Tinnelly Law Group by fax at 949-588-5993

3) Jerome Steinbrecher by U.S. Mail at

1333 W. Birchwood Ave. #203

Chicago, IL 60626

The moving papers must be served on all parties who have appeared in the action, whether or not the motion seeks relief against them. (Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group June 2022 update) ¶ 9:82.5 citing Code Civ. Proc, § 1014.) When a document is required to be served on a party, the service must be made on the party’s attorney if the party is represented. (California Rules of Court (“CRC”), rule 1.21(a).) “If the proof of service names attorneys for separately represented parties, it must also state which party or parties each of the attorneys served is representing.” (CRC, rule 1.21(c).)

Initially, here, Steinbrecher does not indicate who any of the attorneys listed represent as required by CRC, rule 1.21. Nor is it clear on the proof of service whether Jerome Steinbrecher is a party in some manner in this action.

Moreover, assuming each of the firms listed represent a party, and that they and Jerome Steinbrecher were required to be served, the proof of service is deficient such that service does not appear to have been properly made.

Electronic Service

Electronic service is permitted pursuant to Code of Civil Procedure section 1010.6 and the rules on electronic service in the California Rules of Court. (Code Civ. Proc. § 1013(g).) Pursuant to CRC, rule 2.251, proof of electronic service shall be made as provided in Code of Civil Procedure section 1013b, and must be filed at least five court days before the hearing. (CRC, rule 2.251(j).)

Code of Civil Procedure section 1013b states:

(a) Proof of electronic service shall include all of the following:

(1) The electronic service address and the residence or business address of the person making the electronic service.

(2) The date of electronic service.

(3) The name and electronic service address of the person served.

(4) A statement that the document was served electronically.

For cases filed on or before December 31, 2018, electronic service is authorized if a party or other person has agreed to accept electronic service in that specific action or the court has ordered electronic service. (Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (Code Civ. Proc. § 1010.6(a)(2)(A)(i).)

As relevant here, Code of Civil Procedure section 1013b provides as follows:

(a) Proof of electronic service may be made by any of the following methods:

(Code Civ. Proc. § 1013b(a)(1).)

Additionally, Code of Civil Procedure section 1013b states, in part:

(b) Proof of electronic service shall include all of the following:

(1) The electronic service address and the residence or business address of the person making the electronic service.

(2) The date of electronic service.

(3) The name and electronic service address of the person served.

(4) A statement that the document was served electronically.

(Code Civ. Proc. § 1013b(b)(1)-(4).)

Here, the POS indicates Steinbrecher served the instant motion by e-mail to “Christy Han, Stratman & Williams-Abrego at e-mail address socal.legal@farmersinsurance.com.” There is no indication if Christy Han has agreed to accept electronic service in this action, or if the court has ordered electronic service. Moreover, the proof of electronic service does not include the electronic service address of the person making the electronic service, i.e., Steinbrecher. Thus, the proof of service is deficient and as no opposition has been filed to the motion, it is difficult to determine if proper service of the motion was made to Christy Han.

Service by Fax

Service by fax is permitted only where the parties have agreed to this method of service and a written confirmation to that effect is made. (Code Civ. Proc. § 1013(e); CRC, rule 2.306(a).) The CRC specifically states:

Proof of service by fax may be made by any of the methods provided in Code of Civil Procedure section 1013(a), except that:

(1) The date and sending fax machine telephone number must be used instead of the date and place of deposit in the mail;

(2) The name and fax machine telephone number of the person served must be used instead of the name and address of the person served as shown on the envelope;

(3) A statement that the document was sent by fax transmission and that the transmission was reported as complete and without error must be used instead of the statement that the envelope was sealed and deposited in the mail with the postage thereon fully prepaid;

(4) A copy of the transmission report must be attached to the proof of service and the proof of service must declare that the transmission report was properly issued by the sending fax machine; and

(5) Service of papers by fax is ineffective if the transmission does not fully conform to these provisions.

(CRC, rule 2.306(h).)

Here, the POS indicates Steinbrecher served the motion on Carrie Heieck at Tinnelly Law Group by fax at 949-588-5993. However, there is no indication that there is an agreement to this method of service or that a written confirmation to that effect was made.

Moreover, the sending fax machine telephone number is not stated in the proof of service, there is no statement that the fax transmission was reported as complete and without error, and a copy of the transmission report is not attached to the proof of service. Based on the foregoing, as the proof of service by fax does not fully conform to CRC, rule 2.306(h), the service of the instant motion by fax is ineffective.

Service by Mail

For mail service, Code of Civil Procedure section 1013a sets forth requirements for how proof of service by mail may be made. “Effective service of process by mail requires strict compliance not only with section 1013, but also with section 1013a. Strict compliance is required, and failure to comply deprives the court of jurisdiction. [Citations.]” (Dobrick v. Hathaway (1984) 160 Cal.App.3d 913, 921 [finding that the evidence was insufficient to sustain a finding that the request for trial de novo was properly served where a proof of service was never filed and the affidavits failed to allege the address to which the notice was sent].) As relevant here, Code of Civil Procedure section 1013a states:

Proof of service by mail may be made by one of the following methods:

(1) An affidavit setting forth the exact title of the document served and filed in the cause, showing the name and residence or business address of the person making the service, showing that he or she is a resident of or employed in the county where the mailing occurs, that he or she is over the age of 18 years and not a party to the cause, and showing the date and place of deposit in the mail, the name and address of the person served as shown on the envelope, and also showing that the envelope was sealed and deposited in the mail with the postage thereon fully prepaid.

(Code Civ. Proc. § 1013a(1).)

Here, the POS indicates Steinbrecher served Jerome Steinbrecher by U.S. mail at an address in Illinois, but the affidavit itself does not set forth the exact title of the document served and filed in the case although it is stated in the caption, and does not show the residence address of the person making service, i.e., Steinbrecher although it is listed in the upper left hand corner. In addition, the affidavit of service does not state that Steinbrecher is over the age of 18 years and is not a party to the cause, and does not show that the envelope was sealed and deposited in the mail with the postage thereon fully prepaid.

The Court order clerk to give notice to all parties.