Antonio Ibarra v. Kohl’s Department Stores, Inc., et al.

SPECIALLY APPEARING DEFENDANTS’ MOTION TO QUASH SERVICE OF SUMMONS

 

MOVING PARTY: Defendants Kohl’s, Inc., Michelle D. Gass, Louis Bellassai, and Le Dabney

RESPONDING PARTY(S): Plaintiff Antonio Ibarra

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Antonio Ibarra, “on behalf of himself, the general public and on behalf of all other persons and class similarly situated,” asserts 50 causes of action against Defendant Kohls Department Stores, Inc., and various other Defendants. 

Defendants Kohl’s, Inc., Michelle D. Gass, Louis Bellassai, and Le Dabney now move to quash service of the summons and complaint. Plaintiff opposed. 

TENTATIVE RULING

Specially-Appearing Defendants’ Motion to Quash Service is GRANTED.

Specially-Appearing Defendants’ Motion to Dismiss Under CCP §§ 583.410 and 583.420 is DENIED WITHOUT PREJUDICE.

Moving parties are ordered to give notice.

DISCUSSION:

Motion to Quash Service of Summons and Complaint

A. Request for Judicial Notice

Pursuant to Specially-Appearing Defendants’ request, the court takes judicial notice of Defendants’ Exhibits 2-13, 15-16, and 19-21. Plaintiff’s objection to the request is OVERRULED.

Pursuant to Plaintiff’s request, the court takes judicial notice of Plaintiff’s Exhibits 0-25.

The court takes judicial notice of the exhibits without assuming the truth of the assertions contained therein. (See Seelig v. Infinity Broad. Corp. (2002) 97 Cal. App. 4th 798, 808.)

B. Analysis

Specially-Appearing Defendants Kohl’s, Inc., Michelle D. Gass, Louis Bellassai, and Le Dabney move to quash service of the summons and complaint.

This is Specially-Appearing Defendants’ second motion to quash. On February 8, 2023, this court, the Honorable J. Yolando Orozco, granted their motion to quash, finding Plaintiff’s attempts at service by mail and acknowledgment of receipt were invalid. Specifically, because “Defendants never signed a receipt of acknowledgment, Defendants never consented to service by mail, and the service of the summons and complaint remain[ed] incomplete.” (See 02-08-2023 Minute Order, p. 5.) 

In support of the instant motion to quash, Defendants argue service was incomplete for the same reasons, namely, Defendants never signed or returned an acknowledgment of receipt.

On April 03, 2024, Plaintiff filed an “opposition” to the motion. The title of the document referenced “objections” and a request for judicial notice of “exhibits zero through twenty-five. (See 04-03/34 Filing.) However, that filing consisted of only a three-page notice indicating that Plaintiff would oppose the motion. 

After Defendants pointed this out in their Reply, Plaintiff filed a “notice of errata and amendment supplemental, etc.” on April 08, 2024. (See 04-08-24 Filing.) The amended filing consists of an opposition brief, Plaintiff’s declaration, objections, a request for judicial notice, and exhibits labeled zero through twenty-five.

As this court understands Plaintiff’s first argument, Plaintiff maintains that service was complete and effective at the time Defendants’ (or their agents) received the summons and complaint and “signed the USPS Signature Pad.” (Supp. Opp. 11: 21-22.) At minimum, Plaintiff asserts that he “substantially complied” with the statutory requirements. In the alternative, Plaintiff argues Defendants have made a general appearance in this case.

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes:  (1) [t]o 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).)  “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)  “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.”  (Id. at pp. 1441-1442.)  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.”  (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

Service by mail under California Code of Civil Procedure section 415.30 states, in the relevant part, that “[s]ervice of a summons pursuant to this section is deemed complete on the date a written acknowledgment of receipt of summons is executed, if such acknowledgment thereafter is returned to the sender.” (Code Civ. Proc., § 415.30 subd. (c).)

On June 5, 2023, Plaintiff filed an amended proof of service indicating he served Defendants by mail and acknowledgment of receipt of service. August 10, 2023, Plaintiff filed another amended proof of service on, indicating service “by other means.” (See 08-10-23 Proof of Service, ¶ 6.) In the space instructing Plaintiff to “specify means of service and authorizing code section,” Plaintiff cites various portions of the Code of Civil Procedure, including § 415.10 [personal service], § 415.20(a) [substitute service], § 415.30 [mail and acknowledgment of receipt], and § 415.40 [service on person outside California], among others. Plaintiff filed another series of proofs of service on January 18, 2024, again indicating service by mail and acknowledgment of receipt. 

Upon review, the amended proofs of service are defective because, at the very least, no Defendants have signed or returned the acknowledgment of receipt forms. “Code of Civil Procedure section 415.30, effective July 1, 1970, which authorizes service of summons by mail, expressly predicates the efficacy of such service upon the execution and return of an acknowledgment of service. If the party addressed fails to do so, there is no effective service, he merely becomes liable for the reasonable expenses of service in a more conventional manner.” (Thierfeldt v. Marin Hosp. Dist. (1973) 35 Cal.App.3d 186, 199; see also Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1066 [confirming that service under section 415.30 requires acknowledgment of receipt].) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Ellard v. Conway (2001) 94 Cal. App. 4th 540, 544.) 

Although it is true that Defendants have undoubtedly received notice of the lawsuit, “no California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service.” (Lebel v. Mai (2012) 210 Cal. App. 4th 1154, 1165.) Moreover, although the service requirements may be satisfied by “substantial compliance,” this is “not a case of substantial compliance but one of no compliance at all.” (Mannesmann DeMag, Ltd, supra, 172 Cal. App. 3d at 1123.)

Therefore, this court cannot recognize the validity of the incomplete service by mail and acknowledgment of receipt. Moreover, based on a review of the various proofs or service, and consideration of Plaintiff’s opposition, Plaintiff has not met his burden to demonstrate he has validly served the moving Defendants in any other manner authorized by law. 

Finally, the court also rejects Plaintiff’s contention that any moving Defendant made a general appearance. Where a defendant consents to jurisdiction over him or her by making a general appearance in the action, “defective service is not fatal to personal jurisdiction.” (In re Vanessa Q. (2010) 187 Cal. App. 4th 128, 135 [a “general appearance by a party is equivalent to personal service of summons on such party”]; Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145 [“ ‘[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’ ”].) A general appearance occurs when the defendant takes part in the action and “in some manner recognizes the authority of the court to proceed.” (Id.) “[W]hether a party engaged in an act that amounts to an appearance is ‘fact specific.’” (Air Mach. Com SRL v. Superior Ct. (2010) 186 Cal. App. 4th 414, 420.) “The determination of special appearance versus general appearance is based on the ‘character of the relief sought,’ not by statements of intention of the party. [Citation.]” (Humphrey v. Bewley (2021) 69 Cal. App. 5th 571, 579.)

Here, the moving Defendants have indicated they are “specially appearing” in the motion caption, notice of motion, and throughout the brief itself. There are also no other factors pointing to a general appearance. 

Dismissal of the Action Under CCP §§ 583.410 and 583.420

 CCP section 583.410(a) provides that 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.” Relatedly, section 583.420 provides that a “court may not dismiss an action pursuant to this article for delay in prosecution” unless “service is not made within two years after the action is commenced against the defendant.” 

Under Rule of Court Rule 3.1342, “[a] party seeking dismissal of a case under Code of Civil Procedure sections 583.410-583.430 must serve and file a notice of motion at least 45 days before the date set for hearing of the motion.” 

Defendants filed and served their motion on March 19, 2024, for a hearing date of April 15, 2024. Thus, Plaintiff did not receive the requisite 45-day notice.

Accordingly, Specially-Appearing Defendants’ Motion for Dismissal is DENIED WITHOUT PREJUDICE.

Moving parties are ordered to give notice.

IT IS SO ORDERED.

Dated:   April 12, 2024 ___________________________________

PLAINTIFF IS REMINDED OF THIS COURT'S MINUTE ORDER OF 4/5/24 THAT HE IS TO PERSONALLY APPEAR AT THE 4/15/24 HEARING.