Judge: Michael E. Whitaker, Case: 22STCV08410, Date: 2022-12-20 Tentative Ruling

Case Number: 22STCV08410    Hearing Date: December 20, 2022    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

            Defendants Amos Wellington and Estate of Jonathan Rudd Wellington (collectively, Defendants) appear specially and move to quash service of the summons and complaint.  Plaintiff Pamela Jackson (Plaintiff) has not filed a motion in opposition.

ANALYSIS

“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).) 

“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440; accord Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160 [“It was incumbent upon plaintiff, after the filing of defendant's motion to quash, to present evidence discharging her burden to establish the requisites of valid service on defendant”]; Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 [“when a defendant challenges the court's personal jurisdiction on the ground of improper service of process “the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service” ”].)  A declaration of service by a registered process server establishes a presumption that the facts stated in the declaration are true. (Evid. Code, § 647; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.)

“In order to obtain in personam jurisdiction through any form of constructive service there must be strict compliance with the requisite statutory procedures.” (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1417, quoting Stamps v. Superior Court (1971) 14 Cal.App.3d 108, 110.) A plaintiff may serve an individual defendant “by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address . . . , in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address . . . , at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.” (Code Civ. Proc., § 415.20, subd. (b).)

1. Estate of Jonathan Rudd Wellington

Preliminarily, the Court notes, as is stated in the subject motion to quash service of the summons on the Estate of Jonathan Rudd Wellington, it was improper to name the Estate of Jonathan Rudd Wellington as a defendant to the underlying action and attempt to effect service of process on it.  “An ‘estate’ is not a legal entity and is neither a natural nor artificial person. It is merely a name to indicate the sum total of the assets and liabilities of a decedent, or of an incompetent, or of a bankrupt. [citations.] An ‘estate’ can neither sue nor be sued.”  (Bright's Estate v. Western Air Lines (1951) 104 Cal.App.2d 827, 828–829 (quoting Tanner v. Best’s Estate (1940) 40 Cal.App.2d 442, 445).)  As such, the Court quashes service of the summons and complaint on Defendant Estate of Jonathan Rudd Wellington as procedurally defective.

1. Amos Wellington

In regard to Defendant Amos Wellington (Amos), Plaintiff has failed to file with the Court a proof of service reflecting proper service on Amos.  Further, Amos argues whether Plaintiff was attempting to effect personal or substitute serve on Amos, she failed.  Amos advances the declaration of Amos Paul Wellington (Paul) who states the following: (1) Paul is the estranged son of Amos Wellington; (2) the process server delivered the summons and complaints addressed to “Amos Wellington” and “The Estate of Jonathan Rudd Wellington” on Paul in a VONS market parking lot; and (3) Paul did not agree to accept service on behalf of his father nor was he able to later deliver the documents to his father.  (See Declaration of Amos Paul Wellington, ¶¶ 3-6.)  Paul’s declaration establishes that Defendant Amos Wellington was neither personally served nor served via substituted service at his dwelling house, usual place of abode, usual place of business, nor usual mailing address.  Rather the summons and complaint were delivered to Amos’ estranged son who he has not seen in two years, in a grocery store parking lot.  Accordingly, the Court finds Plaintiff’s attempted service on Amos to be invalid.

CONCLUSION AND ORDER

Therefore, the Court grants Defendants’ motions to quash service of the summons and complaint on Defendants Amos Wellington and Estate of Jonathan Rudd Wellington.

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