Judge: Michael P. Linfield, Case: 20STCV49110, Date: 2022-09-28 Tentative Ruling
Case Number: 20STCV49110 Hearing Date: September 28, 2022 Dept: 34
SUBJECT: Motion
to Quash Service of Summons
Moving
Party: Specially Appearing
Defendants Nigro Karlin Segal & Feldstein, LLP, (“NKSF”) and Irwin
Nachimson (“Nachimson”) (collectively “Defendants”)
Resp. Party: Plaintiff
Michael Waddington (“Waddington”)
Specially Appearing Defendants
Nigro Karlin Segal & Feldstein, LLP, and Irwin Nachimson's Motion to Quash
Service of Summons is GRANTED.
I.
PRELIMINARY
COMMENT
As indicated below, the Court is
granting this motion. Nonetheless, it
appears to the Court that this motion to quash does nothing to serve
Defendants’ interest. There appears to
be no doubt that Plaintiff can properly serve Defendants. If so, this motion may be nothing more than a
billing opportunity for Defendants’ counsel.
II.
BACKGROUND
On December 23, 2020, Plaintiff
Michael Waddington filed a complaint against Defendants The Berman Law Group,
APC, Brett A. Berman, Esq., and Seri Kattan-Wright, Esq.
On January 24, 2022, Defendant and
Cross-Complainant The Berman Law Group, APC, filed a Cross-Complaint against
Plaintiff and Cross Defendant Michael Waddington alleging the following causes
of action:
1.
Breach
of Written Contract
2.
Account
Stated
On July 12, 2022, Plaintiff Michael
Waddington filed a Second Amended Complaint against Defendants The Berman Law
Group, APC, Brett A. Berman, Esq., Seri Kattan-Wright, Esq., Nigro Karlin Segal
& Feldstein, LLP, and Irwin Nachimson alleging the following causes of
action:
1.
Professional
Negligence - Legal Malpractice
2.
Breach
of Contract
3.
Breach
of Fiduciary Duty
4.
Professional
Negligence
5.
Breach
of Contract
On August 26, 2022, Specially
Appearing Defendants Nigro Karlin Segal & Feldstein, LLP, and Irwin
Nachimson moved the Court "for an order quashing the service of Summons on
the Second Amended Complaint and the Second Amended Complaint issued in this
action. The Motion will be made pursuant to Code of Civil Procedure §474, on
the ground that Waddington failed to comply with terms of §474 and NKSF and
Nachimson are not properly named "Doe" defendants. The Motion will
also be made pursuant to §418.10, on the ground of lack of personal
jurisdiction over NKSF based on the fact that the Summons on the Second Amended
Complaint and the Second Amended Complaint in this action were not properly
served on NKSF and was therefore ineffective to establish personal jurisdiction
over NKSF." (Motion, p. 1:6-14.)
On September 15, 2022, Plaintiff
Michael Waddington opposed NKSF and Nachimson's motion.
On September 20, 2022, NKSF and
Nachimson replied to Waddington's opposition.
III.
ANALYSIS
A.
Legal
Standard
“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.” (CCP § 418.10(a).) “The motion to
quash must be made . . . on or before the last day to plead ‘or within any
further time that the court for good cause may allow.’” (Edmon & Karnow, Cal.
Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 4:420; Code
Civ. Proc. § 418.10(a); see Marriage of Obrecht (2016) 245 Cal.App.4th
1, 16-17 [where motion to quash was filed after defendant’s time to plead
expired, but plaintiff made no objection and court addressed motion on its
merits, motion to quash was deemed timely brought within time allowed by the
court].)
Complainants have the initial burden to
evidence valid statutory service of a summons and complaint. (Dill v.
Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439-40; Floveyor
Internat. v. Sup. Ct. (1997) 59 Cal.App.4th 789, 794; Edmon & Karnow, supra,
at ¶ 4:428.) “‘[C]ompliance with the statutory procedures for service of
process is essential to establish personal jurisdiction.’ ” (Ellard v.
Conway (2001) 94 Cal.App.4th 540, 544.) A filed proof of service creates a
rebuttable presumption that service was proper if it complies with applicable
statutory requirements. (Floveyor Internat. v. Sup. Ct. (1997) 59
Cal.App.4th 789, 795.)
When a defendant moves to quash service of
the summons and complaint, the plaintiff has “the burden of proving the facts
that did give the court jurisdiction, that is the facts requisite to an
effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.)
“A court lacks jurisdiction over a party if there has not been proper service
of process.” (See Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801,
808.)
In general, there are four methods for
service of process within California, including personal service, substitute
service, service by mail with acknowledgement of receipt, and service by
publication. (See CCP § 415.10 et seq.) Service by mail is only deemed
complete on the date the defendant signs and returns the Acknowledgment. (CCP §
415.30, subd. (c).)
“A summons may be served on a public entity
by delivering a copy of the summons and
of the complaint to the clerk, secretary, president, presiding officer, or
other head of its governing body.” (CCP § 416.50, subd. (a).) A “‘public
entity’ includes the state and any office, department, division, bureau, board,
commission, or agency of the state, the Regents of the University of California,
a county, city, district, public authority, public agency, and any other
political subdivision or public corporation in this state.” (CCP § 416.50,
subd. (b).)
B.
Discussion
1.
Timeliness
of Waddington’s Opposition
Waddington’s Opposition to the
present motion was due nine court days before the September 28, 2022 hearing,
or on September 14, 2022. Waddington filed his opposition one day late, on
September 15, 2022. Nonetheless, the Court will consider Waddington’s
opposition.
2.
Service
of Process
Defendants note that Waddington has
not filed a Proof of Service of Summons on NKSF and/ or Nachimson. (Marsh
Decl., ¶ 4.) Defendants suggest that on or about July 25, 20222, Waddington
wrote a letter to eResidentAgent, Inc. to serve NKSL by mail, believing that
eResidentAgent, Inc. was NKSL’s Registered Agent according to California’s
Secretary of State. (Marsh Decl., ¶ 5, Ex. 1.) Defendants note that on or about
May 8, 2018, as evidenced by the California Secretary of State’s website,
eResidentAgent, Inc. resigned “as agent upon whom process may be served in
California for NKSF. (Marsh Decl., ¶ 6.)
Waddington presents no evidence
that he served NKSF’s registered agent. While it is true as Plaintiff states
that “NKSF can easily be served without issue” there is no evidence that NKSF
was properly served by Waddington. (Opposition, p. 5:6.) Thus, Waddington lacks
evidence to rebut NKSF’s claims that either it or its personnel were properly
served a Summons and the Second Amended Complaint in this action.
IV.
CONCLUSION
Specially Appearing Defendants
Nigro Karlin Segal & Feldstein, LLP, and Irwin Nachimson's Motion to Quash
Service of Summons is GRANTED.