Judge: Mark C. Kim, Case: 22LBCV00090, Date: 2022-12-13 Tentative Ruling

Case Number: 22LBCV00090    Hearing Date: December 13, 2022    Dept: S27

1.     Background Facts

Plaintiff, Charles D. Newton filed his original complaint in this action on 3/07/22.  The original complaint named Kinsella Weitzman Isler Kump & Aldisert LLP, Michael J. Kump, Esq., Kim Kardashian, and Kris Jenner as defendants, and included causes of action for mail fraud and conspiracy. 

On 4/05/22, before any defendant appeared in the action, Plaintiff filed his First Amended Complaint.  The FAC names the law firm and individual attorney as defendants, and then names “Celebrity #1-#11” and “John and Jan Does” as defendants.  It includes causes of action for right to privacy, emotional distress, mail fraud, conspiracy, and related claims. 

On 9/08/22, the Court heard the attorney defendants’ demurrer to the FAC, as well as Plaintiff’s motion for leave to amend.  The Court sustained the demurrer without leave to amend and granted leave to amend in part. 

On 9/14/22, Plaintiff filed his operative Second Amended Complaint.  The SAC names eleven defendants, including Kimberly Kardashian, as well as “John and Jane Does.” 

2.     Motions for Leave to Grant Reimbursement and to Serve Defendant via Email

Plaintiff has two motions for leave to grant reimbursement and to serve defendant via email on calendar today.  The first motion is directed at Defendant, Kanye West aka Ye.  The second is directed at Defendant, Shawn Carter aka Jay-Z and Defendant, Beyonce Knowles.  Plaintiff seeks order requiring the three defendants to (a) pay for his attempts to serve them because they refused service by certified mail, and (b) accept service via email on persons known to have contact with them.

To the extent this is a motion for reimbursement, it is denied for several reasons.  First, CCP §415.30(d) permits the Court to grant reimbursement unless the defendant shows good cause for denying reimbursement.  The subject defendants have not yet been served with the summons and complaint, and have not yet appeared in the action; they have not been given notice of this motion.  They cannot show good cause to avoid paying costs unless and until they are served with the moving papers.  Additionally, §415.30(d) permits the plaintiff to recover the costs incurred in serving the defendant by another method.  Plaintiff’s motion makes clear that he has not yet done so.  The motion is therefore premature, as he has not stated what costs he has incurred in serving them by another method; notably, Plaintiff does not specify the amount of costs he seeks to recover.  Third, the motion does not contain any declaration or other evidence in support of the request for costs.

To the extent this is a motion to serve the three defendants by email, it is also denied.  §415.30 permits a plaintiff to attempt to serve the defendant by mail and acknowledgement of receipt, but if the defendant fails to return the receipt, the plaintiff must then serve the defendant by another accepted means per the Code of Civil Procedure.  Emailing persons familiar with the defendant is not an accepted means of service, and Plaintiff has cited no authority permitting service in this manner.  Plaintiff must serve Defendants in a manner specified by the Code if he wishes to bring them into this action. 

The motions are denied in their entirety for the reasons set forth above. 

3.     Motion to Compel

Plaintiff seeks an order compelling Kimberly Kardashian aka Kim Kardashian, Kris Jenner, Kylie Jenner, Kendall Jenner, Kourtney Kardashian, Khloe Kardashian, and Halle Berry to answer RFAs and special interrogatories.  Plaintiff also seeks an order permitting use of the courthouse for depositions. 

To the extent this is a motion to compel directed at the Kardashian defendants, it appears the crux of the motion is that their responses were not verified and instead were merely signed by their attorney.  Defendants, in their opposition, explain that they served verifications to the subject discovery on 11/21/22, one week after Plaintiff filed this motion.  The motion directed at the Kardashian defendants is therefore substantively moot.  Plaintiff did not seek sanctions in connection with the motion, and therefore there remains nothing to resolve. 

To the extent this is a motion to compel directed at Berry, Berry’s opposition explains that her responses were not due until AFTER Plaintiff filed the motion, and therefore the motion was not ripe as to her when filed.  Notably, she has filed responses at this time.  The motion is therefore also moot as it relates to Berry. 

To the extent this is a motion to use the courthouse for depositions, Plaintiff has cited no authority for the request and the Court knows of none.  The request is denied. 

4.     Motion to Quash

Defendant, Shawn Carter moves to quash service of the summons and complaint on him. He provides evidence that Plaintiff has not served him by any method permitted under the Code of Civil Procedure.  Notably, Plaintiff appears to concede as much, in light of the motion discussed above, wherein he seeks to serve Carter by some alternative method.

Pursuant to Summers v. McClanahan (2006) 140 Cal.App.4^th 403, 413, when a defendant challenges jurisdiction on the ground of improper service of the summons and complaint, the burden is on the plaintiff to prove service was proper.  Any opposition to this motion was due on or before 11/30/22.  The Court has not received opposition to the motion.  Plaintiff has therefore necessarily failed to meet his burden to show service was proper, and the motion is granted. 

5.     Notice

The Kardashian Defendants are ordered to give notice of this ruling. 

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.