Judge: Michael E. Whitaker, Case: 22STCV17661, Date: 2023-03-30 Tentative Ruling

Case Number: 22STCV17661    Hearing Date: March 30, 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

Plaintiffs Martin Martinez and Jennyfer Meza (collectively, “Plaintiffs”) sued Defendants Fabrice Dejean (“Dejean”) and Douglas K. Ross (“Ross”) (collectively, “Defendants”) for causes of action stemming from a motor vehicle collision. 

Defendants, through Defendant Dejean, move to dismiss Plaintiffs’ action on the grounds that Plaintiffs did not properly serve the summons on Defendants.  For the reasons set forth below, the Court will deny the motion as procedurally defective. 

First, Defendant Dejean as a self-represented party cannot represent Defendant Ross in bringing this motion before the Court.  In doing so, Defendant Dejean is engaging in the unauthorized practice of law as there is no indication from the moving papers that he is licensed to practice law in the State of California.  Moreover, Defendant Ross is represented in this action by Ali Faal of Gilsleider, McMahon, Molinelli & Phan (Faal).  (See First Amended Answer filed January 20, 2023.)   

Second, Defendant Dejean failed to serve the notice of motion and motion on Faal as counsel of record for Defendant Ross.  (See Proof of Electronic Service filed March 22, 2023.)  Code of Civil Procedure section 1010 provides in pertinent part:  “Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.”  (See Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, 138 [“The purpose of the notice requirements is to cause the moving party to sufficiently define the issues for the information and attention of the adverse party and the court”].)  More important, the failure to provide notice of the motion to Faal as counsel for Defendant Ross violates basic procedural due process.  (See Jones v. Otero (1984) 156 Cal.App.3d 754, 757 [“The failure to give plaintiffs notice of defendants' motion for dismissal under Code of Civil Procedure 2034 violated not only statutory requirements but fundamental principles of due process as well”].)

Third, “[a] court acquires personal jurisdiction over a party that makes a general appearance in an action even if no summons is served on that party.  [Code of Civil Procedure Section] 1014 lists several acts that constitute an appearance by a defendant (i.e., filing an answer, demurrer, motion to strike, motion to transfer, etc.), but the list is nonexclusive. A party may make a general appearance in an action by various acts which, under all of the circumstances, are deemed to confer jurisdiction of the person.”  (Serrano v. Stefan Merli Plastering Co., Inc. (2008) 162 Cal.App.4th 1014, 1028–1029 [cleaned up]; see also Code Civ. Proc., § 410.50 [“A general appearance by a party is equivalent to personal service of summons on such party”].)  Likewise, a general appearance by a defendant waives any defect in the service of the summons.  (See Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52 [“A general appearance operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service”].)  Here, Defendant Ross filed an answer to the complaint on January 13, 2023 and Defendant Dejean filed a general denial to the complaint on January 20, 2023.  Thus, the Court finds that both Defendants have made general appearances in this action and have waived any purported defects in the service of the summons. 

For the reasons stated, the Court denies Defendants’ motion to dismiss.  The Clerk of the Court shall provide notice of the Court’s ruling.