Judge: Mark E. Windham, Case: 19STCP02333, Date: 2022-09-01 Tentative Ruling

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Case Number: 19STCP02333    Hearing Date: September 1, 2022    Dept: 26

PROCEEDINGS:     MOTION TO QUASH SERVICE OF APPLICATION AND ORDER FOR APPEARANCE AND EXAMINATION

MOVING PARTY:   Respondent Explorer 1 Ambulance and Medical Services, LLC

RESP. PARTY:         Assignee of Record, Creative Recovery Concepts, Inc.

 

MOTION TO QUASH SERVICE

(??)

 

 

TENTATIVE RULING:

 

Respondent Explorer 1 Ambulance and Medical Services, LLC’s Motion to Quash Service Application and Order for Appearance and Examination is DENIED.

 

 

SERVICE OF MOTION: 

 

[X] Proof of Service Timely Filed (CRC 3.1300)      OK

[X] Correct Address (CCP 1013, 1013a)                   OK

[X] 16/21 Day Lapse (CCP 12c and 1005 (b))           OK

 

SUMMARY OF COMPLAINT: Entry of judgment pursuant to Order, Decision or Award of the Labor Commissioner.

 

REQUEST FOR RELIEF: Quash service of the Application and Order for Appearance and Examination on the grounds that Defendant was not served through its agent for service of process.

 

OPPOSITION: Respondent has not overcome the presumption of proper service.

 

REPLY: None filed as of August 29, 2022. 

 

 

ANALYSIS:

 

On January 11, 2019, the Court entered judgment in favor of Petitioner Corey Brooks (“Petitioner”) and against Respondent Explorer 1 Ambulance and Medical Services, LLC (“Respondent”) pursuant to Order, Decision or Award of the Labor Commissioner.

 

On July 15, 2019, Petitioner filed an Application and Order for Appearance and Examination, which was set for hearing on September 24, 2019. On September 24, 2019, the Court placed the hearing off calendar due to lack of personal service of the Application and Order for Appearance and Examination. (Minute Order, 09/24/19.)

 

On January 7, 2021, Petitioner filed a Notice of Assignment of Judgment, naming Creative Recovery Concepts, Inc. as Assignee of Record. On August 5, 2021, Judgment Assignee filed an Application and Order for Appearance and Examination, which was set for hearing on February 7, 2022. On February 7, 2022, counsel for Respondent appeared and indicated that a Motion to Quash had been filed. (Minute Order, 02/07/22.) The Court continued the hearing on the second Application and Order for Appearance and Examination to May 24, 2022. (Ibid.)

 

Respondent filed the instant Motion to Quash Service of the second Application and Order for Appearance and Examination on February 7, 2022. Assignee of Record filed an opposition on April 28, 2022.

 

The Motion initially came for hearing on May 24, 2022, at which time the Court continued the matter to allow Respondent to file and serve supplemental papers. (Minute Order, 05/24/22.) Respondent file a memorandum of points and authorities on July 11, 2022. No supplemental opposition has been filed to date.

 

Discussion

 

First, the Motion to Quash remains defective. The memorandum of points and authorities filed on July 11, 2022 is not accompanied by a proof of service showing service on Petitioner.

 

Second, if the Court considered the merits, Respondent has failed to demosntrate the Motion should be granted. The Motion is brought pursuant to Code of Civil Procedure section 708.110, which requires personal service of the Order for Appearance and Examination. (Motion, p. 2:14-20.) It then cites the personal service statute, set forth at Code of Civil Procedure section 415.10. (Id. at p. 2:21-23.) However, no legal authority is cited by Respondent for the Court to quash an Order for Appearance and Examination that does not comply with the personal service requirements. (Id. at p. 2:24-28.)

 

Finally, even if Respondent provided authority for the Court to quash service of the Order for Appearance and Examination, the competing declarations provided in the Motion and opposition support a finding that Respondent was properly served. The opposition provides the declaration of the process server, who states in detail that the papers were personally handed to Sultan Mohamed, who accepted the check for the witness fee made out to “Explorer 1.” (Opp., Lopez Decl., pp. 1:20-2:6.) The process server also described the person to whom the papers were handed as “a black male aged 35-45, 5’9’, 150 pounds with black hair.” (Id. at p. 2:6-8.) Yet, in its Motion, Respondent does not dispute that this describes its agent for service of process or confirm that it describes Kerry Mondy, the person to whom the papers were purportedly delivered. (Motion, Mondy Decl.)

 

Based on the foregoing, Respondent has not demonstrated either that the purported failure to personally serve the Order for Appeaance and Examination is grounds to quash the Order, or that it was not personally served with the Order for Appearance and Examination

 

Conclusion

 

Respondent Explorer 1 Ambulance and Medical Services, LLC’s Motion to Quash Service Application and Order for Appearance and Examination is DENIED.

 

Court clerk to give notice.