Judge: Latrice A. G. Byrdsong, Case: 22STLC06481, Date: 2024-02-13 Tentative Ruling

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Case Number: 22STLC06481    Hearing Date: February 13, 2024    Dept: 25

Tentative Ruling

Commissioner Latrice A. G. Byrdsong

Department 25

Confidential – Court-Privileged Document

Hearing Date:                         Tuesday, February 13, 2024

Case Name:                             JASON CARRILLO, an individual; LENNY VILLAREAL, an individual v. AVERIEL C. BLAIR, an individual; AND DOES 1-25, inclusive.

Case No.:                                22STLC06481

Motion:                                   Motion to Quash Service of Summons and Request for Dismissal

Moving Party:                         Special Appearing Defendant Averiel C. Blair

Responding Party:                   Plaintiffs Jason Carillo and Lenny Villareal

Notice:                                    OK

Recommended Ruling:           Special Appearing Defendant Averiel C. Blair’s Motion to Quash Service of Summons and Request for Dismissal is CONTINUED TO _______ at _______ a.m. at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant must properly serve the instant motion on Plaintiffs using the correct mailing address. Plaintiffs may file and serve supplemental papers addressing the merits in opposition to Defendant’s Motion.  Defendant may file a reply.  Failure to do so will result in the Motion being placed off calendar or denied.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                      OK

[X] Correct Address (CCP §§ 1013, 1013a)                                      OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                       OK 

OPPOSITION:          Filed late as of February 08, 2024      [X] Late          [   ] None 

REPLY:                     Filed as of February 05, 2024             [   ] Late          [   ] None 

BACKGROUND

On September 30, 2022, Jason Carrillo (“Carrillo”) and Lenny Villareal (“Villareal”) (collectively “Plaintiffs”) filed a cause of action against Defendant Averiel C. Blair (“Defendant”) for motor vehicle negligence. Plaintiffs have not filed any proof of service indicating that Defendant was served with summons and complaint.

On January 12, 2024, Defendant specially appeared to file the instant Motion to Quash Service of Summons and Request for Dismissal.

Plaintiffs filed in opposition. Defendant files in reply to note Plaintiff’s non opposition to the motion and later files in reply to Plaintiffs late opposition.

MOVING PARTY POSITION

            Defendant prays for an order from the Court to quash Plaintiffs’ purported service of summons and complaint under CCP §§ 418.10 and 413.10. Defendant argues that the summons and complaint were not correctly and personally served on Defendant or in any other lawful manner consistent with CCP 415.10, 415.20, 415.21, 415.30, and 415.50. Defendant additionally argues that Plaintiffs have not demonstrated proper service of summons and complaint because they have not filed proof of service with the Court for more than fifteen (15) months.

OPPOSITION

            In opposition, Plaintiffs argue that the only pleading they received was “Defendant’s Notice of Non-Opposition to Defendant’s Motion to Quash Service of Summons and Request for Dismissal” and state that Plaintiff’s counsel has never received Defendant’s Motion to quash. Plaintiffs further note that no court order or agreement between the parties provides for electronic transmissions. Plaintiffs assert that counsel only received Defendants’ notice of non-opposition, so they could not file timely opposition papers to the motion. Therefore, Plaintiffs request the Court to vacate Defendant’s motion and order Defendant to properly serve the motion on Plaintiffs.

REPLY

            In reply, Defendant notes the Plaintiffs’ non-opposition and reasserts their prayer for the Court to exercise its discretion and grant in full Defendant’s Motion to Quash Service of Summons and Request for Dismissal. The Court notes that on February 08, 2024, Defendant responds to Plaintiffs’ opposition, noting that the opposition is untimely and argues that Defendant did serve Plaintiffs with the motion via email after receiving proof of service via email from Plaintiffs’ counsel. Alternatively, Defendant indicates that she is amenable to a continuance of the hearing to allow both Plaintiffs and Defendant to fully brief the motion.

ANALYSIS

I.          Legal Standard

 “‘Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.’ [Citation.]” (AO Alfa-Bank v. Yakovlev (2018) 21 Cal.App.5th 189, 202.) “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential.” (Kremerman v. White (2021). 71 Cal.App.5th 358, 371.) Defendant’s knowledge of the action does not dispense with statutory requirements for service of summons. (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.)

“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 move “to quash service of summons on the ground of lack of jurisdiction of the court over him or her” that results from lack of proper service. (Code of Civ. Proc. § 418.10(a)(1). A defendant has 30 days after the service of the summons to file a responsive pleading. (Code Civ. Proc., § 412.20(a)(3).)

“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.)

“Evidence Code section 647 provides that a registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration. [Citation.]” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code § 647.)

II.        Discussion

            Defendant argues that Plaintiffs’ service of summons and complaint is defective in so far as it has not provided her with actual notice of the instant action against her.

            Defendant states in her sworn declaration that since Plaintiff initiated the lawsuit, she has never been served with the summons and complaint. (Averiel C. Blair Decl. ¶ 5.) Defendant declares that she is a professional hairstylist and that her employment requires her to travel constantly for work. (Id. ¶ 4.) As a result, Defendant is seldom physically at her address at 5251 Vineland Avenue, Apartment 415, North Hollywood, California, 91601 (“address”). (Id. ¶¶ 3,4.) Defendant additionally states that, at times, she allows her 19-year-old nephew to stay at her address. However, Defendant swears that her nephew never gave her the summons and complaint or any other legal document relating to the instant case. (Id. ¶ 6.) 

Defendant further avers that to date; she has not been apprised of the lawsuit against her due to the lack of service of process and that she did not receive the summons and complaint through the mail. (Id. ¶¶ 7-8.) Defendant finally states that when her counsel showed her a copy of the purported proof of service on January 11, 2024, Defendant noted that the description of the person served with process of summons does not match the description of her nephew, who is a Black male, five feet, eight inches (5'8") and weighed approximately 140 pounds. (Id. ¶¶ 9-10; Exh. 1.)

Here, the Court notes that Plaintiffs have not filed proof with the Court that Defendant was properly served with the summons and complaint.      

Further, the Court notes that the Defendant requests to dismiss the action for failure to prosecute under CCP §§ 583.410 and 1167.1. The Court points out that CCP § 1167.1 does not apply in this case as the section applies to proceedings for obtaining possession of real property. The instant action arises from a motor vehicle accident and would not be covered by CCP 1167.1. However, CCP § 583.410 provides that the Court “may in its discretion dismiss an action for delay in prosecution pursuant to this article … on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.” (Code Civ. Proc § 583.410(a).) Here, given the allegations of improper service of instant motion, coupled by the late opposition and reply briefs, which are notably scant in addressing the merits of the motion, the Court finds it prudent to continue the hearing on the motion to allow the parties sufficient time to fully brief the instant motion. Noting that there has been no evidence of an explicit agreement between the parties to accept service via email, the Court orders Defendant to provide service via certified mail and have the motion properly filed with the correct mailing address. Parties are ordered to file timely opposition and reply.

            Accordingly, the hearing on the motion is CONTINUED TO _______ at _______ a.m.

III.       Conclusion

            Special Appearing Defendant Averiel C. Blair’s Motion to Quash Service of Summons and Request for Dismissal is CONTINUED TO _______ at _______ a.m. at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant must properly serve the instant motion on Plaintiffs’ counsel using the correct mailing address. Plaintiffs must file and serve supplemental papers addressing the merits in opposition to Defendant’s Motion. Defendant may file a reply.  Failure to do so will result in the Petition being placed off calendar or denied.

Moving party is ordered to give notice.