Judge: Layne H. Melzer, Case: 2023-01322514, Date: 2023-07-27 Tentative Ruling
Defendants Kaiser Foundation Hospitals, Lindsey Bennett,
Simonette Z Soler, James A Sproul
Motion to Quash
Before the court is Specially Appearing Respondents Kaiser Foundation Hospitals, James Arnold, M.D., M.A., Simonete Zephora Soler, M.D., and Lindsey Bennett, M.D.’s Motion to quash service of Osmar Roberto and Jenny Moreno’s Petition to Vacate the March 6, 2023 Arbitration Award.
A. Legal Standard
A court has the power to vacate or correct an arbitrator's award on specific grounds. (CCP § 1286.)
There are two ways to seek vacation or correction of an arbitration award:
(1) Code Civ. Proc. § 1288 provides: “A petition to vacate an award or correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner,” or
(2) Within 10 days of service of a party's petition to confirm the award, file and serve a timely response. (Civ. Proc. Code, § 1290.6).
The petition and notice of hearing shall name as respondents all parties to the arbitration, and others bound by the award [Civ. Proc. Code, § 1285], and must set forth the grounds on which the request is made. [Civ. Proc. Code, § 1285.8] The petition must also set forth the substance of the arbitration agreement or have a copy attached, name the arbitrator, and set forth or have attached a copy of the award and the arbitrator's written opinion, if any. [Civ. Proc. Code, § 1285.4]
The petition must be served as required by the arbitration agreement, or in the same manner as normal service during litigation [Civ. Proc. Code, § 1010], or as required for the service of a summons if the respondent has not previously appeared or been served. [Civ. Proc. Code, § 1290.4].
Here, this is a new action and thus service has to be made in the same manner as a summons and complaint. (See Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1203, [the 100-day deadline “operates in the same manner as the deadline for filing an appeal, and the court loses jurisdiction to vacate the award if the petition is not timely served and filed”].)
Code of Civil Procedure Section 1288 requires that “[a] petition to vacate an award or to correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner”.
B. Merits
Here, Respondents argue that service of the Petition is not made in the same manner as a summons and complaint. The court agrees.
The Petition is accompanied by a Proof of Service, which asserts that “Kaiser Foundation Health Plan, Inc.” was mail-served with the Petition. (ROA 2) The POS also asserts that Respondent’s Counsel in the underling arbitration matter was served with the Petition by electronic mail. (ROA 2)
Respondent’s Counsel represents that there is no provision for service of process under the arbitration agreement, and this is not challenged by Petitioners. (See Blakeley Decl. ¶ 8.)
Further, this is not an existing proceeding. (See e.g.
Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1208.)
Thus, Petitioners are required to serve the petition on the respondents in the arbitration proceeding “in the manner provided by law for the service of summons in an action.” (Code Civ. Proc., § 1290.4, subd. (b).)
First, Kaiser Foundation Health Plan, Inc. is a separate entity from Kaiser Foundation Hospitals. (See Blakeley Decl. ¶ 9.)
Second, service on either entity by mail in Pasadena, California (as the POS identifies) is defective.
As is relevant for active, California corporations, CCP § 415.10 et seq. prescribes four basic methods for an in-state corporation served in California:
(1) Personal delivery to defendant;
(2) Delivery to someone else at defendant's usual residence or place of business;
(3) Service by mail coupled with acknowledgment of receipt;
(4) Service by publication.
(Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 4:181.)
Code of Civil Procedure Section 415.40 allows service of a summons by mail, requiring return receipt for out of state corporations or outside of California. (See e.g., Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426; M. Lowenstein & Sons, Inc. v. Superior Court In and For Siskiyou County (1978) 80 Cal.App.3d 762.)
Further, as to the individual Respondents, service via prior counsel is improper as it is not an authorized method of service of a summons and complaint.
On June 2, 2023, after this motion to quash was filed, Petitioners filed a new POS showing that they served Kaiser Foundation Hospitals’ agent for service of process CSC Lawyers Inc. personally. (ROA 12)
This appears to moot the Motion as to Respondent Kaiser Foundation.
However, the individual Respondents are not included in the new POS.
Further, electronic service on prior counsel is not an authorized method of service of this Petition. Service on a person’s lawyer is insufficient where the lawyer has no actual or ostensible authority to accept service in the action. That defendant knows the lawsuit is pending does not excuse service of summons requirements. (See Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1416-1417.) As the party with burden of establishing valid service of process when it is contested by defendant, plaintiff bears the burden of showing the party served was defendant's ostensible agent for service of process if challenged. (Lebel v. Mai (2012) 210 CA4th 1154, 1163; Warner Bros. Records, Inc. v. Golden West Music Sales (1974) 36 Cal.App.3d 1012, 1018.)
Here, Petitioners failed to oppose this Motion and have made no argument that prior counsel was Respondents’ ostensible agent for service of process.
Thus, the Motion is granted as to the individual Respondents.
Respondents are ordered to serve notice of this ruling.