Judge: Lee S. Arian, Case: 22STCV25282, Date: 2024-12-16 Tentative Ruling

Case Number: 22STCV25282    Hearing Date: December 16, 2024    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

           On August 4, 2022, Plaintiffs Miracle Adkins (Miracle) by and through Guardian Ad Litem Delorise Polk, and Paige Adkins (Paige) by and through Guardian Ad Litem Delorise Polk (“Plaintiffs”) filed a Complaint against Defendants Susan Hannaford, Marquessa Margolin, Norma Parry, Palazzo Beverly Hills, LLC, Kennie D. Leggett, Juggalot Company LLC, and Rahkeim Crawford alleging four[1] causes of action:

1.   Negligence - Wrongful Death

2.   Premises Liability – Wrongful Death

3.   Negligent Hiring, Retention, and Supervision – Wrongful Death

4.   Recovery Damages for Pain, Suffering or Disfigurement in Survival Action

The Complaint stems from the death of Brandi Parham (Decedent), the mother of Miracle and Paige. Decedent was killed after being shot while attending a party on the night of August 3, 2020 at 13200 Mulholland Drive, Beverly Hills, California (the Premises).

The motion now before the Court is Plaintiff’s Motion for Reconsideration of an order granting a motion to quash service by publication. The underlying motion to quash service by publication was filed by defendants Susan Hannaford and Marquessa Margolin (Defendants). On October 22, 2024, the Honorable Judge Anne Hwang granted the motion to quash service by publication. Judge Hwang’s October 22, 2024 order stated the application for publication materially omitted that Defendants provided a mailing address while specially appearing for the motion to quash, and that the address was for a U.S. Postal Service post office at the McCarren International Airport in Las Vegas, Nevada. Additionally, the order noted that the application for publication lacked any description of reasonable diligence in relation to service in the state of Nevada. Plaintiffs filed the instant Motion for Reconsideration under Code Civ. Proc. §1008(a) arguing that new facts have arisen.

Defendants oppose the Motion for Reconsideration; Plaintiffs filed a reply. 

II.      LEGAL STANDARDS

          The governing statute is Code Civ. Proc. §1008(a) which provides: When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

III.     DISCUSSION

          Judge Hwang’s October 22, 2024 order pointed to two main grounds for granting the motion to quash. First, Plaintiffs omitted the fact that Defendants provided a Nevada address through their filing papers. Second, Plaintiffs lacked effort in exploring with proper diligence the same Nevada address.

In their moving papers, Plaintiffs’ provide that the new information is that service could not be effectuated properly because of Defendants’ efforts to evade service by utilizing seven different[2] addresses. (Declaration of Pius Joseph, hereinafter Joseph Decl., ¶4.) Plaintiffs detail how public court filings demonstrate Defendants listing different addresses, with their most recent using post office locations in Las Vegas, Nevada and Phoenix, Arizona but without specific box numbers. Plaintiffs contend that this makes service via mail impossible because the United States Postal Service cannot deliver to such an address. (Joseph Decl., Exh. 4.)   

          Plaintiffs’ secondary argument is that Plaintiffs have attempted service with the proper diligence necessary, including service by publication. California Code of Civil Procedure Sections 415.10, 415.20, 415.30, and 415.50 describe four methods of service within California: (1) personal delivery of copy of summons and complaint to person to be served; (2) delivery of a copy of summons and complaint to someone else at defendant’s usual residence or place of business; (3) service by mail coupled with acknowledgment of receipt of summons; and (4) service by publication.

After discovering that service within the state of California could not be completed using the first three methods, Plaintiffs applied for and were granted Orders for Publication on June 28, 2024 for both Defendants by the Honorable Judge Mark E. Windham. (See Orders of Publication granted on June 28, 2024.) However, the applications requested publication in California, after Plaintiffs received information that Defendants may reside in Nevada. Indeed, the Court’s filings reveal that in both the prior motions to quash filed by Defendants, both Defendants listed their address as 5757 Wayne Newton Blvd, Las Vegas, Nevada 89119, the supposed address for the U.S. Postal Service post office at the McCarren International Airport.

In their moving papers, Plaintiffs note that service in Nevada to the listed address was impossible.  However, publication in Nevada was not. Specific as to the instant motion for reconsideration, the evidence that Defendants may reside in Nevada was available to Plaintiffs well before the application for publication was submitted to Judge Windham on June 18, 2024. The moving papers fail to demonstrate how the information that Defendants may reside in Nevada is new. Additionally, the moving papers fail to demonstrate how the information regarding the use of different addresses was new. Plaintiffs pulled this information from public court filings but fail to demonstrate that it could not have been discovered earlier with reasonable diligence, given the difficulties with service and that Defendants had at least four different addresses in California alone. (See Missionary Guadalupanas of Holy Spirit Inc. v. Rouillard (2019) 38 Cal.App.5^th 421, 438.)

          In opposition, Defendants provide two main counterarguments. The first emphasizes the criminal history of the guardian-ad litem Delorise Polk, and the criminal history of the father of Decedent’s children, Herman Atkins. However, those criminal histories are wholly irrelevant to the instant motion.

The second counterargument is the fact that Defendants’ use of multiple addresses does not suffice as “new or different facts” under Code Civ. Proc. §1008(a). The Court agrees.

          In reply, Plaintiffs argue the fact the Las Vegas, Nevada address was invalid is a “new” fact for the purposes of Code Civ. Proc. §1008(a). The Court disagrees because the Joseph Decl., ¶4 demonstrates that Plaintiffs knew the Las Vegas, Nevada address was invalid after receiving a “return to sender unable to forward” notice from USPS on August 15, 2023, and then another notice that there was no P.O. box at the post office within McCarren International Airport on October 29, 2024. Here, the earlier notice, more than a year before Judge Hwang’s granting of the second motion to quash should have alerted Plaintiffs that further investigation was needed. However, it was only after Judge Hwang’s decision that this “new” information was then provided to the Court. Without any genuine new information or evidence, the instant motion must, pursuant to CCP 1008.           

IV.     CONCLUSION

Plaintiff’s Motion for Reconsideration of the Order Granting Defendant’s Motion to Quash Service by Publication is DENIED. Plaintiffs may apply for service by publication in the state of Nevada prior to the three-year statute of limitations for service as defined in Code Civ. Proc. §583.210(a).

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Dated this 16th day of December, 2024