Judge Michael P. Linfield, Case Number: 3STCV15454, Date: 2024-04-15 Tentative Ruling

Judge: Michael P. Linfield, Case: 3STCV15454, Date: 2024-04-15 Tentative Ruling

Case Number: 3STCV15454 Hearing Date: April 15, 2024 Dept: 34

SUBJECT: Motion to Quash Service

Moving Party: Specially-Appearing Defendant Hay Tanning

Resp. Party: None

SUBJECT: Motion to Dismiss

Moving Party: Specially-Appearing Defendant Hay Tanning

Resp. Party: Plaintiff Benita Elliott

The Second Motion to Quash is GRANTED. The Proof of Service of Summons is QUASHED.

The Motion to Dismiss is DENIED without prejudice.

BACKGROUND:

On July 3, 2023, Plaintiff Benita Elliott her Complaint against Defendant Hay Tanning on a cause of action for harassment.

On September 14, 2023, the Court: (1) granted Specially-Appearing Defendant’s motion to quash service; and (2) quashed Plaintiff’s service of summons.

On March 11, 2024, Plaintiff filed Judicial Council Form POS-010, Proof of Service of Summons.

On March 21, 2024, Specially-Appearing Defendant filed his Motion to Quash Service (“Second Motion to Quash”). In support of his Second Motion to Quash, Specially-Appearing Defendant concurrently filed: (1) Exhibits to Motion to Quash; (2) Proposed Order; and (3) Proof of Service.

On March 21, 2024, Specially-Appearing Defendant also filed his Motion to Dismiss. In support of his Motion to Dismiss, Specially-Appearing Defendant concurrently filed: (1) Exhibits to Motion to Dismiss; (2) Declaration of Hay Krisster Tanning; (3) Proposed Order; and (4) Proof of Service.

On April 9, 2024, Plaintiff filed her Opposition to the Motion to Dismiss.

No opposition or other response was filed to the Second Motion to Quash.

ANALYSIS:

I. Second Motion to Quash

A. Legal Standard

“A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery. The date upon which personal delivery is made shall be entered on or affixed to the face of the copy of the summons at the time of its delivery. However, service of a summons without such date shall be valid and effective.” (Code Civ. Proc., § 415.10.)

“In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and 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. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” (Code Civ. Proc., § 415.20, subd. (a).)

“If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served 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 other than a United States Postal Service post office box, 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 other than a United States Postal Service post office box, 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. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” (Code Civ. Proc., § 415.20, subd. (b).)

“A summons may be served by mail as provided in this section. A copy of the summons and of the complaint shall be mailed (by first-class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender.” (Code Civ. Proc., § 415.30, subd. (a).)

“Service of a summons pursuant to this section is deemed complete on the date a written acknowledgement of receipt of summons is executed, if such acknowledgement thereafter is returned to the sender.” (Code Civ. Proc., § 415.30, subd. (c).)

“A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing.” (Code Civ. Proc., § 415.40.)

“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).)

B. Discussion

On March 11, 2024, Plaintiff filed Judicial Council Form POS-010, Proof of Service of Summons. Declarant Marcel Farmer, who is not a registered California process server, declares that substitute service occurred on January 30, 2024 at 4:30. But there is no information as to who accepted service, nor is there a declaration of diligence attached to the Proof of Service of Summons.

Specially-Appearing Defendant moves the Court to quash this service of summons, arguing that it is not valid, and that Plaintiff has not met her burden here. (Second Motion to Quash, pp. 4:6–7, 5:8–9.)

Plaintiff has not opposed or otherwise responded to the Second Motion to Quash.

The Court agrees with Specially-Appearing Defendant. The Proof of Service of Summons filed on January 30, 2024 is defective, and Plaintiff has not met her burden to demonstrate that Specially-Appearing Defendant has been properly served.

The Court GRANTS the Motion and QUASHES the proof of service of summons on Specially-Appearing Defendant Hay Tanning.

C. Conclusion

The Second Motion to Quash is GRANTED. The Proof of Service of Summons is QUASHED.

II. Motion to Dismiss

A. Legal Standard

“The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.” (Code Civ. Proc., § 583.410, subd. (a).)

“Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.” (Code Civ. Proc., § 583.410, subd. (b).)

“The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred:

“(1) Service is not made within two years after the action is commenced against the defendant.

“(2) The action is not brought to trial within the following times:

“(A) Three years after the action is commenced against the defendant unless otherwise prescribed by rule under subparagraph (B).

“(B) Two years after the action is commenced against the defendant if the Judicial Council by rule adopted pursuant to Section 583.410 so prescribes for the court because of the condition of the court calendar or for other reasons affecting the conduct of litigation or the administration of justice.

“(3) A new trial is granted and the action is not again brought to trial within the following times:

“(A) If a trial is commenced but no judgment is entered because of a mistrial or because a jury is unable to reach a decision, within two years after the order of the court declaring the mistrial or the disagreement of the jury is entered.

“(B) If after judgment a new trial is granted and no appeal is taken, within two years after the order granting the new trial is entered.

“(C) If on appeal an order granting a new trial is affirmed or a judgment is reversed and the action remanded for a new trial, within two years after the remittitur is filed by the clerk of the trial court.

(Code Civ. Proc., § 583.420, subd. (a).)

“The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint. When the complaint is amended to add a defendant, the added defendant must be served and proof of service must be filed within 30 days after the filing of the amended complaint.” (Cal. Rules of Court, rule 3.110(b).)

“California courts have inherent power to dismiss civil cases for unreasonable, inexcusable delay in prosecution.” (Slesinger v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 758, citations omitted.)

“However, in imposing the ultimate sanction of dismissal, judges are required to consider the history of the conduct of the case.” (Tliche v. Van Quathem (1998) 66 Cal.App.4th 1054, 1061.)

B. Discussion

Specially-Appearing Defendant moves the Court to dismiss the Complaint, citing California Rules of Court, rule 3.110(b). (Motion to Dismiss, p. 4:10.)

Plaintiff, who is litigating this matter in propria persona, opposes the Motion to Dismiss. Plaintiff makes various arguments that appear to address the merits of the matter. However, Plaintiff does not make any arguments that explain why Defendant has not yet been properly served in this matter.

The Court previously warned Plaintiff that “[i]f Plaintiff failures to serve Defendant(s) by the above-mentioned hearing date [of February 1, 2024], the Court will consider dismissing the case.” (Minute Order dated November 1, 2023, p. 1.)

However, the Court recognizes that a pro per litigant may find that “interrogatories, requests for admissions, law and motion proceedings, and the like” are “baffling devices.” (Bruno v. Super. Ct. (1990) 219 Cal.App.3d 1359, 1363, quoting Burley v. Stein (1974) 40 Cal.App.3d 752, 755, fn. 3.) In addition, “[p]roviding access to justice for self-represented litigants is a priority for California courts.”¿ (Cal. Rules of Court, rule 10.960(b).)

The Court’s own records also show that Plaintiff Elliott has filed numerous other actions against Defendant Tanning. Ms. Elliott filed six requests for restraining orders against at least three different people; five of the six were dismissed for lack of prosecution; one TRO was granted (although not against Defendant Tanning). Plaintiff Elliott also file another complaint against Defendant Tanning that was dismissed by the Court approximately two months before this case was filed.

The Court will give Plaintiff one more opportunity to properly serve Defendant in this matter. If Plaintiff has not properly served Defendant prior to the continued Case Management Conference, the Court will dismiss the case.

C. Conclusion

The Motion to Dismiss is DENIED without prejudice.

The Case Management Conference (CMC) is continued to July 15, 2024 at 8:30 a.m. All parties are to file a new, timely Case Management Statement prior to next CMC.