Judge: Laura A. Seigle, Case: 23STCV01373, Date: 2023-10-18 Tentative Ruling

Case Number: 23STCV01373    Hearing Date: March 14, 2024    Dept: 15

[TENTATIVE] ORDER RE MOTION TO QUASH (Dr. Ing. H.C.F. Porsche AG)

Plaintiffs filed this action on January 20, 2023.  On June 29, 2023, Plaintiffs named Dr. Ing. h.c.F Porsche AG as a Doe defendant.  On September 21, 2023, Plaintiffs filed a motion for preference stating they had served all defendants.  Pursuant to Code of Civil Procedure section 36, a party moving for preference must declare that all essential parties have been served.  On October 18, 2023, the court granted the motion for preference and set a February 13, 2024 trial date.

On December 13, 2023 Dr. Ing. h.c.F Porsche AG filed a motion to quash service of summons, arguing it had not been served with the complaint and summons.  On January 12, 2024, the court granted that motion, finding that Plaintiffs have not served Dr. Ing. h.c.F Porsche AG, which learned about the lawsuits only months after the purported service  At the hearing, the court asked Plaintiffs' counsel what was to be done with Dr. Ing. h.c.F Porsche AG given that the preference trial date was in a month and Dr. Ing. h.c.F Porsche AG had not yet been served.  Plaintiffs' counsel stated that Dr. Ing. h.c.F Porsche AG should be dismissed.  Accordingly the court dismissed Porsche without prejudice on January 12, 2024.  (See Jan. 12, 2024 minute order at p. 5.)

On February 13, 2024, Dr. Ing. h.c.F Porsche AG filed another motion to quash.  Apparently, after January 12, 2024 Plaintiffs again purported to serve Dr. Ing. h.c.F Porsche AG with the complaint and summons.  There are multiple problems with Plaintiffs’ second attempt at service.

First, the court dismissed Dr. Ing. h.c.F Porsche AG on January 12, 2024, pursuant to the request of Plaintiffs’ counsel, because the preference trial date was in one month.  Because Dr. Ing. h.c.F Porsche AG was dismissed from this case, Plaintiffs cannot simply try to serve it with the complaint and summons.  Plaintiffs must first file a motion for leave to amend the complaint to name Dr. Ing. h.c.F Porsche AG as a defendant.

Second, this is a preference case.  When Plaintiffs filed their motion for preference on September 21, 2023, they were obligated to have already served all essential parties, including Dr. Ing. h.c.F Porsche AG.  But they had not served Dr. Ing. h.c.F Porsche AG.  The preference statute does not allow a plaintiff to serve a defendant with the complaint and summons after filing a motion for preference and after a preference trial has been set, which is what Plaintiffs are attempting to do here.

Third, the now-continued preference trial is on April 29, 2024, in six weeks and four days.  Even assuming that Plaintiffs can serve a defendant after dismissing that defendant, and even assuming Plaintiffs can add in a late defendant after filing a motion for preference, and even assuming Plaintiff properly served Dr. Ing. h.c.F Porsche AG, six weeks and four days is not enough time for Dr. Ing. h.c.F Porsche AG to take discovery, file a motion for summary judgment, and prepare for trial.

For all of these reasons, the motion to quash is GRANTED.  The moving party is to give notice.