Judge: Mark H. Epstein, Case: 23SMCV01745, Date: 2023-08-11 Tentative Ruling

Case Number: 23SMCV01745    Hearing Date: August 11, 2023    Dept: R

We are going to nip this in the bud right now.  Defendant contends that she was in Iran on the date that service purportedly occurred and she has presented some evidence to support the claim.  As such, she claims she was never properly served.  On August 9, 2023, plaintiff filed an untimely opposition.  Plaintiff contends that counsel has never agreed to accept service of papers electronically, or at least not unless a copy was also sent to the paralegal.  Defendant served the motion electronically and did not copy the paralegal.  Accordingly, plaintiff’s counsel says that the motion was not received until August 8, 2023, which is why the opposition is so late.

The bottom line is that this kind of gamesmanship is, frankly, a waste of the court’s time and the taxpayer’s time.

First, defendant is probably right as a substantive matter that service was improper.  The process server spoke to a person through a window who claimed to be defendant and agreed to accept service of process.  But that does not mean it was the defendant.  That does not make the proof of service perjurious, but it is questionable.  Service was not made by delivering the document into the hand of the defendant; it was left on the doorstep (with someone’s permission).  But that is not necessarily proper service.  And the proof of service does not so state.  Because of that, the server cannot provide a description of the person who purportedly accepted service.  The bottom line is that it is not good enough, although there is certainly evidence that there was no nefarious motive behind the process server’s actions.

Second, plaintiff is probably right that electronic service is not proper absent an order or an agreement.  It seems that plaintiff was willing to allow service of process for motions and the like to be electronic, but only on the condition that the paralegal was copied.  Presumably, the division of labor in the firm is such that counsel relies on staff to calendar matters appropriately and does not go through emails for that purpose.  If an email is sent that includes a court filing, it appears counsel just ignores it on the assumption that the paralegal will handle it—even though it is plan that the paralegal was not copied.  That may not be the safest practice in the world, but under the circumstances at bench it is not improper.  In any event, defense counsel should have either served the motion in a more traditional way or copied the paralegal.  Or maybe, just maybe, defense counsel should have picked up the phone and called plaintiff’s counsel to discuss the matter.

Third, why do we care?  Defendant is plainly on notice of the suit.  Plaintiff has not taken a default.  Bringing this motion is an exercise in time-wasting.  The right response would be for defense counsel (who is obviously aware of the law suit, as is the carrier) to call plaintiff’s counsel, raise the issue, agree to accept service of process, and negotiate an appropriate date to answer or otherwise respond.  Plaintiff’s counsel should agree to a reasonable date.  And then we all get to move forward.  Defense counsel should read The Rutter Guide on this point.  Motions to quash for poor service (absent an issue relating to personal jurisdiction or the like) are generally a waste of time.  The fact that everyone has had to spend time on this is a poor reflection on both parties, but most especially the defense.

In light of that, the court will GRANT the motion.  The service might or might not have been proper as a means of substituted service, but that is not what the proof of service asserts.  The court will ask defendants if they will deem service to be complete this day and they will then have 30 days to answer or otherwise respond to the complaint.  If defendants refuse to deem service complete, the court will require plaintiff to try again.  But the court does not want to hear complaints about the knock on the door at 3 am or having the process server make a scene at a restaurant or family event. 

The parties need to do better.  If this kind of behavior continues, the court warns all that the litigation will be long and uncomfortable.