Judge: Mark C. Kim, Case: 20STCV45208, Date: 2022-12-22 Tentative Ruling

Case Number: 20STCV45208    Hearing Date: December 22, 2022    Dept: S27

1.     Background Facts

Plaintiff, Jack Brown filed this action against Defendants, Daniel Capen, M.D., Philip Sobol, M.D., Healthsmart Pacific, Inc., dba Pacific Hospital of Long Beach, and Michael D. Drobot for medical malpractice and related claims.  Plaintiff filed the suit on 11/24/20.  The case was originally assigned to the personal injury hub court, but was ultimately transferred to Department S27 due to its complicated nature. 

2.     Motion to Quash

Defendant, Drobot moves to quash service of the summons and complaint, contending he was never properly served with the summons and complaint.  Specifically, he contends he was purportedly served at a residence, but he has been incarcerated since September of 2018. 

Any opposition to the motion was due on or before 12/09/22.  The Court has not received opposition to the motion.  When a defendant files a motion to quash, the burden is on the plaintiff to establish that service of the summons and complaint was proper.  Summers v. McClanahan (2006) 140 Cal.App.4^th 403, 413.  In light of the lack of opposition, the motion is granted.

The Court notes that the motion also mentions setting aside any default or default judgment against Drobot.  Plaintiff sought to have Drobot’s default entered on 4/01/22, but the Clerk rejected the request.  Plaintiff has not subsequently sought entry of default.  There is, therefore, no default or default judgment to set aside. 

The motion to quash is granted.  The Court sets an OSC re: dismissal for failure to file proof of service of the summons and complaint on Drobol for Wednesday, 2/22/23.  CCP §583.420(a)(1) permits the Court to dismiss an action if proof of service has not been filed within two years after the action is filed.  The Court notes that this action has been pending since 11/24/20.  Plaintiff must take steps to serve Drobol forthwith if he wishes to maintain this action against Drobol. 

Drobol 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 any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.