Judge: Mark C. Kim, Case: 20LBCV00504, Date: 2023-03-16 Tentative Ruling
Case Number: 20LBCV00504 Hearing Date: March 16, 2023 Dept: S27
1. Background
Facts
Plaintiff, Tokio Marine America Insurance Company filed this action
against Defendant, Prestig, Inc. for carrier liability under the Carmack
Amendment. Plaintiff filed its original
complaint on 11/19/20 and its operative First Amended Complaint on 1/19/21.
Plaintiff alleges it insured Panasonic Corporation. Defendant received a shipment of 1024 cartons
of lithium ion batteries from Panasonic in Carson and was charged with taking the
shipment to Kansas City. However, the
rig carrying the batteries was involved in a single vehicle accident, resulting
in the vehicle over-turning and damaging the batteries. Plaintiff alleges it suffered loss in the amount
of $620,199.27, as it had to pay its insured for the damage to its goods.
On 5/06/21, the Court heard and denied Defendant’s special motion to
strike. Defendant appealed the ruling,
and the Court of Appeals affirmed. Both the
trial court and the appellate court held that Defendant failed to show the
complaint was based on protected conduct or speech, and therefore the
anti-slapp statute did not apply; neither the trial court nor the appellate
court reached the second prong of the analysis, where a determination of the probability
of success on the merits would have been required.
On 12/06/22, the Court overruled Defendant’s demurrer to the complaint.
2. Procedural
History Relating to Prestige Transportation, Inc.
Plaintiff named Prestige
Transportation, Inc. (“PTI”) as Doe 1 in this action on 9/13/22. On 10/18/22, Plaintiff filed proof of service
on PTI; the POS indicates Plaintiff’s registered process server served PTI by substitute
service on its client manager/person in charge of office, Brandon Yadegar.
On 11/28/22, PTI filed a motion to
quash service of the summons and complaint.
On 12/06/22, Plaintiff filed a second proof of service on PTI. The second POS indicates a person, not a
process server, served PTI by personal service on On-Call Legal, Inc. at 2476
Overland Avenue, LA, 90064.
On 1/05/23, PTI filed an answer to the
complaint and an amended motion to quash the service purportedly established by
way of the 12/06/22 proof of service.
3. Motion
to Quash
a.
Parties’ Positions
PTI moves to quash service of the
summons and complaint, contending service was not proper under CCP §416.10, no
person at the subject address is authorized to accept service on behalf of PTI,
and any purported service under §416.90 is improper because PTI is not a
business of unknown type.
Plaintiff opposes the motion. It argues its proper proof of service acts as
prima facie evidence of service, service was proper per §416.10(b), PTI
designated #1 A+ as its agent for service of process, and #1 A+ designated
On-Call as the sub-agent for the State of California. It argues PTI clearly has knowledge of the
action, and there has been, at minimum, substantial compliance with the service
statutes. It seeks, in the alternative,
a nunc pro tunc order permitting it to serve PTI by email service on its
attorney.
PTI, in reply, argues service is
not proper per §416.10(b), which was not even marked on the POS itself. It argues any agency designation made in
connection with the Code of Federal Regulations does not create the type of
agency relationship contemplated by the Code of Civil Procedure. It argues Plaintiff’s own documents show it
designated Autumn Andrade on Calabasas as its agent in California. It argues any arguments re: actual receipt
and/or nunc pro tunc orders are baseless and not supported by the law.
b.
CCP §416.10 vs. 416.90
Plaintiff’s proof of service
indicates, at ¶6(d), that Plaintiff served PTI pursuant to CCP §416.90 and 49
CFR 366.1, et seq. CCP §416.10 governs
service on corporations. §416.10(a)
permits service on a corporation’s “person designated as agent for service of
process as provided by any provision in Section 202, 1502, 2105, or 2107 of the
Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to
6504, inclusive, of the Corporations Code, as in effect on December 31, 1976,
with respect to corporations to which they remain applicable).”
CCP §416.90 governs service on “persons
not otherwise specified.” PTI is not a
person otherwise specified. It is “incorporated,”
and Plaintiff does not contest this fact in opposition to the motion. Plaintiff must, therefore, effectuate service
per §416.10, not per §416.90. Despite
the erroneous designation on the proof of service, in an abundance of caution,
the Court will rule on the issue of whether Plaintiff effectuated proper service
per §416.10.
c. Designated
Agent
Plaintiff argues service on On Call
was proper because On Call was the sub-agent designated by A+ in California
under the system required by 49 USC §13304.
Plaintiff’s argument fails for two reasons. First, 49 USC §13304 is not one of the
permitted code sections for designation under §416.10, detailed above.
Second, Plaintiff’s submitted
evidence does NOT show that On Call is the sub-agent for A+ in California. Instead, Exhibit 2 to the Azari declaration,
submitted with the opposition, shows PTI designated Autumn Andrade in Calabasas
as its agent under the Carmack Act in the State of California. It designated A+ as its agent in
COLORADO. Exhibit 3 shows, in turn that
A+ designated On Call as its sub-agent in California. There is no showing that PTI’s agent in California
designated On Call as its sub-agent.
d. Knowledge
of Action
Plaintiff argues that, even if the
motion is otherwise well-taken, PTI clearly has notice of the action against
it. Plaintiff cites no authority for its
position that, standing alone, knowledge of an action is sufficient to defeat a
motion to quash. Notably, a motion to
quash, by its very filing, implies knowledge of the lawsuit. This argument therefore fails.
e. Nunc
Pro Tunc Order
Plaintiff asks, in the alternative,
that it be granted a nunc pro tunc order permitting it to serve PTI through
email service on PTI’s attorney. Law.com
defines nunc pro tunc as follows:
Latin for "now for then
this refers to changing back to an earlier date of an order, judgment or filing
of a document. Such a retroactive re-dating requires a court order which can be
obtained by a showing that the earlier date would have been legal, and there
was error, accidental omission or neglect which has caused a problem or
inconvenience which can be cured. Often the judge will grant the nunc pro tunc
order ex parte (with only the applicant appearing and without notice).
Examples: a court clerk fails to file an answer when he/she received it, and a
nunc pro tunc date of filing is needed to meet the legal deadline (statute of
limitations); a final divorce judgment is misdirected and, therefore, not
signed and dated until the day after the re-marriage of one of the parties-the
nunc pro tunc order will prevent the appearance or actuality of a bigamous
marriage.
Plaintiff did not make any showing
that would give rise to issuance of a nunc pro tunc order. The request is denied.
f. Conclusion
The motion to quash is
granted. Plaintiff’s proof of service is
defective on its face. Additionally,
Plaintiff failed to show service was proper under §416.10, even if the proof of
service had so reflected.
While not directly relevant to the
motion, the Court does note that PTI has filed an answer and that its ultimate
involvement in the action appears to be inevitable. The Court strongly encourages the parties to
work together to resolve service issues without the need for additional law and
motion practice.
PTI is ordered to give notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. 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. 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 the parties do not submit
on the tentative, they should arrange to appear remotely.