Judge: Michael E. Whitaker, Case: 19STCV29844, Date: 2023-04-19 Tentative Ruling

Case Number: 19STCV29844    Hearing Date: April 19, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Defendant Starbucks Corporation (Defendant) moves to dismiss the action filed by Plaintiff Lloyd W. Brooks (Plaintiff) for Plaintiff’s failure to file and serve a first amended complaint (FAC) after the Court sustained Defendant’s demurrer to the original complaint.  Plaintiff opposes the motion.  Defendant replies.

            On March 2, 2023, the original hearing date for the instant motion, after hearing argument from Defendant and Plaintiff, the Court continued the hearing to allow Plaintiff to file and serve the FAC and an opposition to Defendant’s motion to dismiss, and to allow Defendant to file and serve a reply to an opposition. 

            On April 5, 2023, Plaintiff filed the FAC with the Court.  On April 7, 2023, Plaintiff filed his opposition to the motion.  On April 10, Plaintiff filed a proof of service demonstrating service of the FAC on Defendant’s counsel via mail on April 8, 2023.  On April 12, 2023, Defendant filed its reply. 

ANALYSIS

Per Code of Civil Procedure section 581, subdivision (f)(2), the Court may dismiss the complaint as to that defendant when “after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.”  (Code Civ. Proc., § 581, subd. (f)(2).) 

In its August 3, 2022 Minute Order, the Court sustained Defendant’s demurrer to Plaintiff’s complaint and ordered Plaintiff to file an amended complaint within 60 days of notice of the Court’s ruling.  (See August 3, 2022 Minute Order.)  Defendant gave Plaintiff notice of the Court’s ruling on August 4, 2022 by mail.  Plaintiff thus had until October 3, 2022, to serve and file an amended complaint. 

As of the filing date of the motion, Plaintiff had not served and filed an amended complaint.  However, as was previously discussed, the Court continued the original hearing date for Defendant’s motion to dismiss to allow Plaintiff to file and serve his FAC and further file an opposition explaining his delay in filing.  On April 5, 2023, Plaintiff filed his FAC, on April 7, 2023, Plaintiff filed his opposition explaining his excusable delay, and on April 8, 2023, Plaintiff served Defendant with the FAC via mail.

In reply, Defendant contends that it has still not received any documents from Plaintiff, either by mail, facsimile, or email, and thus concludes that Plaintiff has not served an amended complaint on counsel for Defendant.  However, a completed proof of service creates a rebuttable presumption that the documents as indicated in the proof of service were received.  (See Colleen M. v. Fertility & Surgical Assocs. (2005) 132 Cal.App.4th 1466, 1479-1480.)  The presumption of proper service can be rebutted by introducing evidence that the document was not received.  (See Phay Him v. City & County of San Francisco (2005) 133 Cal.App.4th 437, 445.)  A rebuttal of the presumption of proper service should be supported by sworn testimony that neither the attorney of record nor the party received the document.  (See Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1479-1480.)  Here Defendant has failed to advance any evidence.  Accordingly, Defendant has not met its burden to rebut the presumption of service of the FAC, in light of Plaintiff’s filing of a proof of service establishing service of the FAC on Defendant’s counsel via mail on April 8, 2023.

CONCLUSION AND ORDER

Therefore, the Court denies Defendant’s motion to dismiss Plaintiff’s action.  Defendant shall provide notice of the Court’s ruling and file a proof of service of such.