Judge: Melvin D. Sandvig, Case: 19CHCV00267, Date: 2022-09-16 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F47, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2247.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 19CHCV00267    Hearing Date: September 16, 2022    Dept: F47

Dept. F47

Date: 9/16/22

Case #19CHCV00267

 

MOTION TO QUASH SERVICE

 

Motion filed on 6/13/22.

 

MOVING PARTY: Defendant Old Republic National Title Insurance

RESPONDING PARTY: Plaintiff Madlen Hagopian

NOTICE: ok

 

RELIEF REQUESTED: An order quashing the service of summons and complaint for lack of personal jurisdiction as to Old Republic National Title Insurance.

 

RULING: The motion is granted.

 

Plaintiff’s counsel is once again reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil.  See also CRC 3.1110(f)(4).  Despite being warned of the foregoing requirements more than once, Plaintiff’s counsel has again failed to bookmark the declaration and exhibits attached to the opposition.  (See  8/28/20 Minute Order; 12/17/20 Minute Order).  Continued failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

 

This action arises out of Plaintiff Madlen Hagopian’s (Plaintiff) purchase of certain real property on or about 7/25/17.  Plaintiff alleges that there was an unpaid treasury bill from the previous owner in the amount of $5,847.19 of which escrow and her agent failed to advise her.  On 3/27/19, Plaintiff filed this action naming the escrow company, Powerhouse Escrow Corp. Escrow Corp., her realtor (Maxwell Realty Inc.), and the seller (Luis Alberto A. Hernandez) as defendants along with Doe Defendants 1-25.  The operative First Amended Complaint, filed on 9/18/20, includes Old Republic National Title Insurance Company (Old Republic) as a defendant.  Old Republic was not named as a defendant in the original complaint.  The First Amended Complaint contains causes of action for: (1) Negligence and (2) Unfair Business Practices.

 

On 6/13/22, Old Republic filed and served the instant motion which seeks an order quashing the service of summons and complaint for lack of personal jurisdiction as to Old Republic.  Plaintiff has opposed the motion. 

 

CCP 418.10(a) provides in relevant part:

 

A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes:

 

(1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.

 

…

 

(3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8.

 

A summons and complaint must be served on a defendant within three years after the action is commenced against the defendant.  CCP 583.210(a).  An action is commenced at the time the complaint is filed.  Id.; See also CCP 350; CCP 411.10.  The fact that the summons is served on a person who is not named as a defendant in the underlying complaint does not stop the statute of limitations from running.  Fireman’s Fund Ins. Co. (2004) 114 CA4th 1135, 1144.  The three-year rule set forth in CCP 583.210(a) applies to a defendant sued by a fictitious name from the time the complaint is filed.  Inversiones Papaluchi S.A.S. (2018) 20 CA5th 1055, 1061 citing Lesko (1982) 127 CA3d 476, 481-482.  As such, a plaintiff has three years from the date the complaint is filed to identify and serve a Doe defendant.  Id. citing Higgins (2017) 15 CA5th 973, 982. 

 

If service is not made within three years: (1) the action shall not be further prosecuted and no further proceedings shall be held in the action; and (2) the action shall be dismissed by the court on its own motion or on motion of any person of interest in the action, whether named or not, after notice to the parties.  See CCP 583.250(a), (b).

 

CRC 3.110(b) requires that all named defendants and proofs of service for those defendants must be filed with the court within 60 days after the filing of the complaint.  The rule goes on to state that when a complaint is amended to add a defendant, the added defendant must be served and proof of service must be filed within 30 days after the filing of the amended complaint.  CRC 3.110(b).

 

Plaintiff filed her original complaint on 3/27/19 without naming Old Republic, despite knowing of its identity and the basis for the claims against it.  (See below).  Plaintiff filed her First Amended Complaint on 9/18/20 but did not serve Old Republic until 5/13/22 which is more than 3 years after the original complaint was filed.

 

When a plaintiff is ignorant of the name of a defendant, the plaintiff must state that fact in the complaint and such defendant may be designated by a fictitious name, and when that defendant’s true name is discovered, the pleading may be amended accordingly.  See CCP 474.  Ignorance of the name of the defendant does not only mean being ignorant of the defendant’s identity, but also ignorant of the facts giving rise to a cause of action against that defendant.  See San Diego Navy Broadway Complex Coalition (2019) 40 CA5th 563, 579 citing Fuller (2000) 84 CA4th 1163, 1170; McClatchy (2016) 247 CA4th 368, 371-372.

 

A complaint may not be amended to add a new defendant after the statute of limitations has run.  McGee Street Productions (2003) 108 CA4th 717, 724 citing Woo (1999) 75 CA4th 169, 175-178.  The only exception to the foregoing rule is when the original complaint states a cause of action against a Doe defendant and the plaintiff is unaware of the true identity of that party at the inception of the lawsuit.  McGee, supra at 724-725. 

 

Here, as noted above, Old Republic was not named as a defendant in Plaintiff’s original complaint filed on 3/27/19.  Old Republic was added as a named defendant in the First Amended Complaint filed on 9/18/20.  The First Amended Complaint does not indicate that Old Republic is added as a defendant in place of a previously designated Doe defendant.  (See First Amended Complaint).  This may be because the exception provided by CCP 474 does not apply to this case. 

 

The evidence shows that Plaintiff first submitted her claim to Old Republic for payment of the bill at issue in 2018, which Old Republic denied because of a specific exclusion within the title insurance policy.  (See Perkowitz Decl. ¶4).  On 11/16/18, Plaintiff sent a letter to Old Republic demanding payment of the bill and attached a draft summons and complaint which included allegations against Old Republic identical those in the First Amended Complaint.  (Perkowitz Decl. ¶¶5-6; Ex.C).  However, Plaintiff did not serve Old Republic with any signed complaint and summons until 5/13/22, almost 4 years later.  (Perkowitz Decl. ¶8). 

 

The opposition to the motion does not refute any of the foregoing facts or authorities.  Rather, Plaintiff seems to argue that because Old Republic was aware of her claim in 2017 or 2018 and because of difficulties serving the First Amended Complaint due to the Covid-19 pandemic, the motion should be denied.  Plaintiff offers no authority to support her arguments which are confusing, if not inaccurate.  The Court further notes that none of the exhibits attached to the opposition are authenticated.  (See Kamarian Decl.).    

 

With regard to the failure to name Old Republic in the original complaint, Plaintiff states that although a draft complaint was sent to Old Republic in 2018, “a different version of the Complaint was filed on behalf of a firm that Kamarian Law has retained to take over all the legal procedures at Kamarian Law firm, which was not same the [sic] Complaint that was sent to the Defendant, which was the intended Complaint to be submitted” and the complaint filed on 3/27/19 “somehow” did not name Old Republic.  (See Opposition, p.3:23-25, p.4:12-14).  Plaintiff offers no authority for the proposition that her counsel’s mistake in failing to name Old Republic in the original complaint is grounds to deny the motion. 

 

Plaintiff also argues that due to the Covid-19 pandemic, she was unable to serve Old Republic’s agent for service of process until 5/13/22, despite diligent efforts.  (See Kamarian Decl. ¶4).    Plaintiff claims that due to the Covid-19 pandemic, the process server was not permitted to personally serve Old Republic’s agent for service of process and was instructed to deliver such documents by mail.  While Plaintiff seemingly attempted to serve Old Republic by mail along with a Notice of Acknowledgment of Receipt, the unauthenticated exhibits attached to the opposition show that the documents were mailed to an incorrect address.  Within Exhibit B attached to the opposition is what appears to be a printout from the Secretary of State website which indicates that the address for Old Republic’s agent for service of process is 275 Battery St., Suite 1500, San Francisco CA 94111.  (See Opposition, Ex.B (p.20); See also Opposition, Ex.C – 5/13/22 proof of service which shows the street number as 275).  However, a copy of the envelope purportedly containing the documents which was returned from the Post Office indicates that it was mailed to 375 Battery St., Suite 1500, San Francisco CA 94111.  (See Opposition, Ex.B (pp.22-23)).

 

Nothing in the opposition, establishes that Plaintiff and/or her counsel’s failure to name Old Republic in the original complaint, despite knowing of its identity and the basis for the claims against it,  and/or their failure to timely serve Old Republic is grounds to deny the motion.  As such, the service of the summons and First Amended Complaint on Old Republic is quashed and the action is dismissed as to Old Republic.