Judge: Michael E. Whitaker, Case: 21STCV22388, Date: 2023-05-08 Tentative Ruling

Case Number: 21STCV22388    Hearing Date: May 8, 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 Frankie Lane (Plaintiff) sued Defendants Raman Dlamini (Dlamini) and Harriet Sawyer (erroneously sued as Harriet Demato), individually and as trustee of Harriet and Richard Demato Trust (collectively, Sawyer) based on a physical altercation between Plaintiff and  Dlamini on property purportedly owned and controlled by Sawyer.

Sawyer appears specially and separately moves to quash service of the summons for lack of personal jurisdiction.  Plaintiff has not filed an 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: . . . (d) Record of (1) any court of this state or (2) any court of record of the United States or of any state of the United States . . . (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. (d), (h).)

Here, the Court grants Sawyer’s unopposed request for judicial notice of the Court’s Minute Orders of July 14, 2022, and July 20, 2022, per Evidence Code section 452.

ANALYSIS

1.     MOTION TO QUASH

“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.”  (Code Civ. Proc., § 418.10, subd. (a)(1).)  And “[a] defendant or cross-defendant may make a motion under this section and simultaneously answer, demur, or move to strike the complaint or cross-complaint.  [n]o act by a party who makes a motion under this section, including filing an answer, demurrer, or motion to strike constitutes an appearance, unless the court denies the motion made under this section. If the court denies the motion made under this section, the defendant or cross-defendant is not deemed to have generally appeared until entry of the order denying the motion.”  (Code Civ. Proc., § 418.10, subd. (e)(1).)

            Preliminarily, Sawyer explains her delay in filing the instant motion to quash.  Sawyer advances the declaration of her counsel, Nicole Fasson Aki (Counsel), who states that Plaintiff’s counsel and Counsel agreed upon one of the following timelines for Sawyer to file and serve a responsive pleading to the Complaint, pending the outcome of Defendant Richard Demato’s demurrer that was heard on July 14, 2022: (1) if the demurrer was overruled, Sawyer would file a responsive pleading within the timeframe specified by the Court; and (2) if the demurrer was sustained, Sawyer would await the amended complaint before filing a response.  (See Declaration of Nicole Fassonaki, ¶ 3.)  The demurrer was sustained with leave to amend.  (Declaration of Nicole Fassonaki, ¶ 4.)  However, to date, Plaintiff has not filed an amended complaint, nor has Counsel received correspondence from Plaintiff’s counsel regarding a forthcoming amended complaint.  (Declaration of Nicole Fassonaki, ¶¶ 6-10.)  Sawyer ultimately filed the instant motion on September 22, 2022.

            Further, Code of Civil Procedure section 418.10 holds, in part, that “[t]he notice shall designate, as the time for making the motion, a date not more than 30 days after filing of the notice.”  (Code Civ. Proc., § 418.10, subd. (b).)  Here, Swayer filed the notice of motion on September 22, 2022 with a hearing on the motion set for May 8, 2023.  However, the gap of more than 30 days between the filing and hearing does not abrogate Sawyer’s motion as held by the Court of Appeal in Olinick v. BMG Entertainment.  

Olinick contends a mandatory, 30–day strict timeline governs the motion and by failing to designate a hearing within the 30–day period, BMG waived its right to bring the motion under section 418.10. The argument fails.

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: Scheduling 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.  Accordingly, we reject Olinick's theory that a tardy hearing date on a motion to stay or dismiss under section 418.10 deprives the trial court of jurisdiction to consider the merits of the motion.

(Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1296 [cleaned up].) 

Accordingly, the Court shall address Sawyer’s motion on the merits.

2.     PERSONAL JURISDICTION

“[W]hen jurisdiction is challenged by a nonresident defendant, the burden of proof is upon the plaintiff to demonstrate that ‘minimum contacts’ exist between the defendant and the forum state to justify imposition of personal jurisdiction.” (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.)  It is thus upon the plaintiff to demonstrate by a preponderance of the evidence that all jurisdictional criteria are met. (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232.)  If plaintiff meets this burden, “it becomes the defendant’s burden to demonstrate that the existence of jurisdiction would be unreasonable.”  (Buchanan v. Soto (2015) 241 Cal.App.4th 1353, 1362.)  The trial court has discretion to continue the hearing on a motion to quash service of summons for lack of personal jurisdiction to allow plaintiff to conduct discovery on the jurisdictional issues.  (HealthMarkets, Inc. v. Superior Court (2009) 171 Cal.App.4th 1160, 1173.) 

Under the due process clause of the Fourteenth Amendment to the United States Constitution, state courts may exercise personal jurisdiction over nonresidents who have “minimum contacts” with the forum state. Minimum contacts exist when the relationship between the nonresident and the forum state is such that the exercise of jurisdiction does not offend “traditional notions of fair play and substantial justice.” (International Shoe Co. v. Washington (1945) 326 U.S. 310, 316, internal quotations omitted.)

“Personal jurisdiction may be either general or specific. A nonresident defendant may be subject to the general jurisdiction of the forum if his or her contacts in the forum state are substantial[,] continuous and systematic. In such a case, it is not necessary that the specific cause of action alleged be connected with the defendant’s business relationship to the forum. Such a defendant's contacts with the forum are so wide-ranging that they take the place of physical presence in the forum as a basis for jurisdiction.” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445-446, internal quotations & citations omitted.)

Even if a nonresident defendant does not have sufficient contacts with California such that the defendant is subject to suit in California generally, the defendant may nonetheless be subject to jurisdiction in California for claims based on the defendant’s activities in the state. To assert “limited” or “specific” personal jurisdiction over a nonresident defendant, the plaintiff must demonstrate that: (a) the out-of-state defendant purposefully established contacts with the forum state; (b) the plaintiff’s cause of action “arises out of” or is “related to” defendant’s contacts with the forum state; and (c) the forum’s exercise of personal jurisdiction in the particular case comports with “fair play and substantial justice.” (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 477-478.)

Here, Plaintiff served Sawyer individually and as Trustee for the Harriet and Richard Demato Rust via substituted service on May 13, 2022.  (See May 18, 2022 Proofs of Service.)  Nonetheless, Sawyer challenges this Court’s in personam jurisdiction over her.  Sawyer advances her declaration which states the following:

·       The Complaint notes that at all times relevant, I have primarily resided and done business in the County of Los Angeles, State of California. Per the Complaint, the relevant time would appear to be October 6, 2020, the date of the alleged incident.

·       I do not own or operate any business located in Los Angeles County or the State of California.

·       I have never resided in California.

·       From birth to 2015, I resided in New York State. During this timeframe I was employed in New York State.

·       I have resided in and been self-employed in Florida since 2015.

·       I was married to Richard Demato from 1986-2014.

·       At no time did my former husband and I create a trust known as the Harriet and Richard Demato Trust.

·       I have no knowledge of the existence of the Harriet and Richard Demato Trust, or any similarly named trust.

·       At no time have I ever been a trustee for the Harriet and Richard Demato Trust.

·       As the Harriet and Richard Demato Trust has, to my knowledge, never existed, it did not own 5101 Whitsett Avenue, Unit 103, in Valley Village, California.

·       I never individually owned, operated or managed 5101 Whitsett Avenue, Unit 103, in Valley Village, California.

(Declaration of Harriet Sawyer,  3-13.)

            Plaintiff has not filed an opposition, nor advanced any evidence to dispute Sawyer’s contentions that she does not own the subject property where the underlying incident occurred, 5101 Whitsett Avenue, Unit 103, Valley Village, California, or that Swayer has minimum contacts with the State of California to justify imposition of personal jurisdiction.

CONCLUSION AND ORDER

            Plaintiff has not met his burden of proof to establish that this Court has personal jurisdiction over Sawyer.  Accordingly, the Court grants Sawyer’s motion to quash service of the summons.

The Clerk of the Court shall provide notice of the Court’s ruling.