Judge: Michael E. Whitaker, Case: 20STCV35766, Date: 2023-05-17 Tentative Ruling

Case Number: 20STCV35766    Hearing Date: May 17, 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

Plaintiff Dora Griselda Portillo (Plaintiff) sued Defendants Hertz Vehicles, LLC (Hertz) and Sophia Ingrid Santalucia (specially appearing) (collectively, Defendants) based on injuries Plaintiff allegedly sustained in a motor vehicle collision.  Defendants move to quash service of the summons on Defendant Sophia Ingrid Santalucia (Santalucia) for improper service.  Plaintiff opposes the motion.  Defendants reply to the opposition.

JUDICIAL NOTICE

Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state . . . (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States . . . (f) The law of an organization of nations and of foreign nations and public entities in foreign nations . . . (h) Facts and propositions that are not reasonably subject to dispute and are capably of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (a), (c), (f), (h).)

Here, the Court grants Defendants’ unopposed request for judicial notice of the Hague Service Convention, and Volkswagenwerk Aaktiengesellschaft v. Schlunk (1988) 486 U.S. 694, pursuant to Evidence Code section 452.

ANALYSIS

1.      TIMELINESS OF MOTION

“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. (2) To stay or dismiss the action on the ground of inconvenient forum.”  (Code Civ. Proc., § 418.10, subd. (a)(1)-(2).) 

Preliminarily, Plaintiff argues Defendants’ instant motion to quash service of summons is untimely based on Defendants’ counsel, Russel Rubin’s, presence at the previous hearings pertaining to Plaintiff’s efforts to serve Santalucia via publication.  Plaintiff concludes based on Russel Rubin’s knowledge of Plaintiff’s plan to serve Santalucia via publication, Defendants failure to move to quash service earlier is unreasonable.  Here, Plaintiff served the summons on Santalucia via publication on January 14, 2023.  Thus, Santalucia’s last day to plead would have been February 14, 2023.  Defendants filed the instant motion on February 22, 2023. 

However, the Court finds this delay does not invalidate Defendants’ motion.  Section 418.10 states at subdivision (a):  “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 . . . .”  Thus, the statute reflects the trial court is authorized to extend the time for filing such a motion.  Further, as Weil and Brown observes: “[S]cheduling a hearing date beyond 30 days should not invalidate a motion to quash.  Nothing in [section] 418.10 suggests the court must overlook the lack of personal jurisdiction or proper service because of a defendant's failure to schedule a hearing date within 30 days.”  (Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2022) § 3:381.)  Accordingly, the Court shall proceed to Defendants’ motion to quash on the merits.

2.      SERVICE OF SUMMONS AND COMPLAINT

Under Code of Civil Procedure section 413.10, subdivision (c), a summons shall be served on a person “[o]utside the United States, as provided in this chapter or as directed by the court in which the action is pending, or, if the court before or after service finds that the service is reasonably calculated to give actual notice, as prescribed by the law of the place where the person is served or as directed by the foreign authority in response to a letter rogatory.  These rules are subject to the provisions of the Convention of the ‘Service Abroad of Judicial and Extrajudicial Documents’ in Civil or Commercial Matters (Hague Service Convention).”  (Code Civ. Proc., § 413.10, subd. (c).)  The methods enumerated in section 413.10, subdivision (c) for serving defendants abroad all require transmission of documents abroad, and therefore are preempted by the Hague Conventions as to a defendant in signatory countries.  (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1136.)

Here, since filing the lawsuit on September 18, 2020, both defense counsel and Plaintiff have been unable to locate Santalucia.  The only known information about Santalucia derives from the rental agreement she entered into with Defendant Hertz, which indicates she is a citizen and resident of Germany.  After unsuccessful attempts to locate Santalucia, Plaintiff applied to the Court for service by publication.  On December 19, 2022, the Court approved service by publication in “The Orange County Register”, a newspaper of general publication published in Orange County, California. 

Defendants argue the summons and complaint were not properly served upon Santalucia because Santalucia is presumed to be residing in Germany, a signatory of the Hague Service Convention, and the documents were not shown to be published in a manner that is compliant with the Hague Service Convention.  Here, Plaintiff’s service of Santalucia is in compliance with the Court’s December 19, 2022 order allowing Plaintiff to serve the summons and complaint on Santalucia by publication via “The Orange County Register.”  Thus, Defendants’ argument that Plaintiff’s service of Santalucia via publication is improper, is actually a direct challenge of the Court’s December 19, 2022 order. 

A trial judge ordinarily may reconsider his or her own prejudgment rulings.  Code of Civil Procedure section 128, subdivision (a)(8) authorizes a court to amend and control its process and orders so as to make them conform to law and justice. . . .  There are limits, however, on the authority of one superior court judge to set aside the order of another judge of the same court. Under article VI, section 4, of the California Constitution, one judge or department of the superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of another judge or department of the superior court.  This rule prevents a trial court judge from acting as a one-judge appellate court over another judge.

(People v. Waldon (2023) 14 Cal.5th 288, 306 [cleaned up].)  In particular, when an order directing service by publication is improperly made, a court may quash the service of summons effected pursuant to such an order.  A trial court has the inherent ability to reconsider a prior order directing service of summons by publication so it may correct its own errors.  (See, e.g., Humphrey v. Bewley (2021) 69 Cal.App.5th 571, 578–579.)

Here, the December 19, 2022 ruling ordering Plaintiff to serve Santalucia by publication was made by Judge Katherine Chilton.  Thus, this Court (Judge Michael E. Whitaker) does not have the authority to overturn or otherwise interfere with Judge Chilton’s ruling authorizing service of the summons on Santalucia via publication.  In short, the Court finds that Defendants are in essence seeking to nullify Judge Chilton’s order through their motion to quash, arguing that the service of the summons by publication on Santalucia is defective. 

Based on Defendants’ failure to directly attack the December 19, 2022 ruling ordering Plaintiff to serve Santalucia via publication, the Court finds Plaintiff’s service of Santalucia via publication is in compliance with the December 19, 2022 order and is thus proper.

CONCLUSION AND ORDER

            The Court concludes Plaintiff’s service of the summons and complaint on Santalucia via publication to be valid service of the summons, and denies Defendants’ motion to quash for improper service of process.  Santalucia shall file and serve a response to the complaint on or before June 7, 2023.   

            Defendants shall provide notice of the Court’s ruling and file a proof of service regarding the same.