Judge: Jon R. Takasugi, Case: 19STCV39580, Date: 2022-08-11 Tentative Ruling

Case Number: 19STCV39580    Hearing Date: August 11, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Hernandez’ second motion to quash service of summons on the basis of improper service is GRANTED. 

On November 4, 2019, Plaintiffs Terry Herrera and Teodora Herrera (collectively, Plaintiffs) filed suit against Full Circle Real Estate Solutions, Inc. (Full Circle), the Mum Group, Marvin U. Mangabat, and Erik Lederman. Plaintiff filed a first amended complaint (FAC), alleging: (1) intentional misrepresentation; (2) concealment; (3) negligent misrepresentation; (4) conversion; (5) elder abuse; (6) rescission of contract; (7) violation of Business and Professions Code section 7163; (8) breach of fiduciary duty; (9) cancellation of instruments; (11) declaratory relief; (12) unjust enrichment; (13) equitable lien; (14) preliminary and permanent injunction; and (15) violation of Business and Professions Code section 17200.

On 12/17/2021, the Court granted Defendant Ruth Hernandez’ (Hernandez) motion to quash service on her as a DOE Defendant, and thus concluded that her motion to quash basis on improper service was moot.

            Now, Hernandez moves to quash service of summons on her on the basis of improper service of summons.

Discussion

            On 12/17/2021, the Court granted Hernandez’ motion to quash service on her as a DOE Defendant writing:

Here, Plaintiff not only clearly knew Hernandez’ actual identity, but clearly knew of Hernandez’ connection with the case. Plaintiff’s original complaint alleged that Hernandez had acted as a representative for Full Circle, that she had promised to help Plaintiff avoid foreclosure, and that she had “pressured” Plaintiff into consenting to the contracts through “fear and intimidation.”

Accordingly, Plaintiff was not “ignorant” of Hernandez’ identity within the meaning of CCP section 474, and thus Hernandez has not been properly added as a DOE Defendant in this action.

            (Minute Order 12/17/2021)

            Now, Hernandez again moves to quash service. Apparently, prior to the aforementioned hearing on 12/17/2021, Plaintiffs had re-attempted service of Hernandez on 12/6/2021. Because this second attempt of service was not embraced in Hernandez’ previous motion, she again moves for a determination from this Court that the DOE amendment does not comport with the requirements of CCP section 474.

            Given that the re-served complaint is identical to the complaint already considered by this Court, the Court finds that its 12/17/2021 ruling applies with equal force here. Accordingly, for the same reasons set forth in this Court’s 12/17/2021 ruling, Hernandez has not been properly added as a DOE Defendant in this action.

            After the Court’s 12/17/2021 ruling, Hernandez’ counsel asked Plaintiffs' counsel to confirm that he would not be proceeding with the purported service on Hernandez on 12/6/2021, and that Hernandez need not respond to Plaintiffs' SAC. Plaintiffs' counsel refused to so confirm, but rather maintained that Hernandez was validly served, and should respond accordingly. (Manning Decl., ¶ 3.) Plaintiffs’ counsel’s position is all the more egregious given that Plaintiffs did not raise any opposition to Hernandez’ initial motion, and did not seek reconsideration of that decision. As such, Plaintiffs made no effort to dispute the validity of Hernandez’ position.

            In opposition, Plaintiffs’ new counsel does not respond to any of the substantive analysis of this Court from the 12/17/2021 ruling as to the DOE issue. Rather, they attempt to relitigate the issue of whether or not Plaintiffs were aware of claims against Hernandez before the deposition of Elia. “…[R]egardless of the name, a motion asking the trial court to decide the same matter previously ruled on is a motion for reconsideration….”) (Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1577.) Here, the Court has already adjudicated the issue of whether or not Hernandez could be properly added as a DOE Defendant. Plaintiffs did not move for reconsideration of that ruling, and the opportunity to do so has since passed.  

            While the Court would have found sanctions to be warranted, Plaintiffs argued in opposition that Hernandez failed to comply with the 21-day safe-harbor provision provided for under CCP section 128.5. Hernandez did not argue otherwise in reply. Accordingly, while warranted, the Court may not properly award sanctions.

Based on the foregoing, Hernandez’ second motion to quash service of summons on the basis of improper service is granted. 

It is so ordered.

Dated:  August    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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