Judge: Michael Shultz, Case: 23CMCV00095, Date: 2023-11-30 Tentative Ruling

Case Number: 23CMCV00095    Hearing Date: November 30, 2023    Dept: A

23CMCV00095 Salvador Gudino v. Denise Kontos, Peter Kontos

[TENTATIVE] ORDER GRANTING MOTION TO QUASH SERVICE OF SUMMONS AS TO DENISE KONTOS

[TENTATIVE] ORDER GRANTING  MOTION TO QUASH SERVICE OF SUMMONS AS TO PETER KONTOS

      This action arises from Defendants’ alleged failure to pay wages and overtime, and for failure to provide rest periods in violation of the Labor Code. Defense argues that Plaintiff claimed to have served Denise Kontos (“Decedent”) on August 28, 2023, although she died in September of 2022. Plaintiff did not file an opposition by November 28, 2023 (nine court days before the hearing). (Code Civ. Proc., § 1005 subd. (b).)

      Defendant can move to quash service of summons based on the court’s lack of jurisdiction over Defendant. (Code Civ. Proc., § 418.10, subd. (a)(1).) Plaintiff bears the burden of proving by a preponderance of evidence that "all necessary jurisdictional criteria are met." (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1233; Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440.)

      Plaintiff purportedly served Decedent by substituted service on “Juan Doe,” the shift manager of Columbia Hamburgers. (Motion, Ex. 2, p. 1.) The summons and complaint were subsequently mailed to the same business address. Peter Kontos (Mr. Kontos), Decedent’s son, declares that Decedent died in September of 2022. Plaintiff did not file an opposition to this motion, however, in opposition to the second motion regarding service on Mr. Kontos, Plaintiff’s counsel acknowledges receiving Decedent’s death certificate. (Opp. 5:13-14.)

      If a person dies before an action is brought, “he is never a party to the action” and any judgment against him or her is void. (Lundblade v. Phoenix (1963) 213 Cal.App.2d 108, 112.) This action was filed on January 20, 2023, after Denise’s death.

[TENTATIVE] ORDER GRANTING MOTION TO QUASH SERVICE OF SUMMONS AS TO PETER KONTOS

I.        ARGUMENTS

      Defendant, Peter Kontos, separately moves to quash service of summons as he was improperly substituted in for Doe 1. Plaintiff was not truly ignorant of Defendant’s identity and the facts giving rise to the cause of action. Therefore, amendment pursuant to Civil Procedure, section 474, is improper and the amendment does not relate back to the filing of the original complaint.

      In opposition, Plaintiff argues that although Plaintiff knew of Mr. Kontos’ identity, Plaintiff was ignorant of the facts giving rise to Mr. Kontos’s liability. Mr. Kontos is a proper defendant as a personal representative, distribute, or person who took the property.

      In reply, Defendant argues that Plaintiff’s arguments are unsupported by the evidence. If considered, the evidence demonstrates that Plaintiff had knowledge of Mr. Kontos’ identity and facts to support liability. Plaintiff has not sued Mr. Kontos in his representative capacity.

II.      LEGAL STANDARDS

      Defendant may properly move to quash service of summons and complaint under Cal. Code Civ. Proc. § 418.10 for lack of jurisdiction by challenging the propriety of an amendment to state the name of a Doe defendant. (Maier Brewing Co. v. Flora Crane Service, Inc. (1969) 270 Cal.App.2d 873, 875.) As previously stated, Plaintiff bears the burden of proving by a preponderance of evidence that "all necessary jurisdictional criteria are met." (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1233; Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440.)

      Plaintiff can substitute the true name of fictitiously named defendant if plaintiff is ignorant of a defendant’s name and thereafter discovers defendant’s true name. (Code Civ. Proc., § 474.)

The general rule is that an amended complaint that adds a new defendant does not relate back to the original complaint was filed, and the statute of limitations is applied as of the date the amended complaint was filed. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) However, the amendment will relate back to the original complaint and avoid the statute of limitations if the plaintiff was “genuinely ignorant of the defendant's identity or the facts rendering the defendant liable when the original complaint was filed. (Code Civ. Proc., § 474; Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 602.)

      When it appears that “plaintiff knew both the person's identity and the facts giving rise to liability when the complaint was filed, but did not name him, that person cannot be served as a Doe after the statute of limitations has run.” (Taito v. Owens Corning (1992) 7 Cal.App.4th 798, 802; (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 177 [“The omission of the defendant's identity in the original complaint must be real and not merely a subterfuge for avoiding the requirements of section 474."]; Westfour Corp. v. California First Bank (1992) 3 Cal.App.4th 1554, 1559–1560 [“A plaintiff is 'ignorant of the name' of a defendant within the meaning of the fictitious name statute not only when he is ignorant of the defendant's identity, but also when he knows the defendant's identity but is ignorant of facts giving rise to a cause of action against that defendant.”].)

III.    DISCUSSION

      As Defendant observes in reply, there is no evidence that Plaintiff knew of Mr. Kontos’ identity, but not the facts to support liability. Plaintiff’s counsel’s declaration attaches copies of recorded documents and a Statement of Information.

      The opposition represents what Plaintiff knew at certain times, but Plaintiff has not provided a declaration in support. Argument of counsel is not evidence. (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173.) Additionally, for purposes of section 474, Plaintiff’s knowledge is tested at the time the suit is filed. (Sobeck & Associates, Inc. v. B & R Investments No. 24 (1989) 215 Cal.App.3d 861, 867.)

      Plaintiff’s arguments regarding Mr. Kontos’ liability in different capacities are irrelevant to the issues raised by Defendant.

IV.    CONCLUSION

      Without any evidence to support Plaintiff’s knowledge, Plaintiff has not met his burden of establishing that he satisfied the requirements of Civil Procedure section 474. Accordingly, the Defendant’s motion to quash service on Defendant Peter Kontos is GRANTED.