Judge Randolph M. Hammock, Case 22STCV10842 2022-12-16 Tentative Ruling

Plaintiff Caviar Mickens brings this employment action against Defendants Express Services, Atlas Homeware Co., and Saint Vincent De Paul. Plaintiff alleges he sought employment assignments through Defendant Express Services for roles as a forklift operator. Plaintiff alleges that Express Services limited his assignments due to his perceived sexual orientation. Moreover, once assigned to Defendant Atlas Homeware Co. and then Saint Vincent De Paul, Plaintiff alleges he faced further harassment or discrimination from those employers based on his perceived sexual orientation and/or race. This led Plaintiff to voluntarily resign. Plaintiff brings causes of action for (1) loss of earning capacities, (2) harassment, (3) discrimination, (4) deceit/fraud, (5) negligence, and (6) constructive discharge. Plaintiff also seeks punitive and/or exemplary damages.

“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.)

Specially appearing Defendant Saint Vincent De Paul moves to quash service of the summons and complaint due to defective service. The summons provides notice only to “Express Services Corporation and Atlas Homeware Co., et al.” (See Helfman Decl., Exh. 1.) Saint Vincent De Paul, however, is not named in the Summons. (See id.) Moreover, although Saint Vincent De Paul is mentioned in the Complaint, the Complaint does not clearly name it as a Defendant.

“Except as otherwise required by statute, a summons shall be directed to the defendant, signed by the clerk and issued under the seal of the court in which the action is pending, and it shall contain…(2) The names of the parties to the action.” (CCP § 412.20 [emphasis added].) “[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.)

Here, by failing to name Saint Vincent De Paul anywhere on the face of the summons, Plaintiff failed to provide the statutorily required notice. (See Mannesmann DeMag, Ltd. v. Superior Ct. (1985) 172 Cal. App. 3d 1118, 1122 [service was invalid where name of defendant did not appear anywhere on the summons and the return failed to describe who was being served or in what capacity he was being served].) Likewise, the summons contains no indication in what capacity Saint Vincent De Paul is being sued.

Although service requirements may be satisfied by “substantial compliance,” service under similar facts has been deemed “not a case of substantial compliance but one of no compliance at all.” (Mannesmann DeMag, Ltd, supra, 172 Cal. App. 3d at 1123.) And although it is true that Defendant 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.)

Finally, the court notes that when a defendant moves to quash service, the “burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Constr. Co. (1994) 24 Cal. App. 4th 1426, 1439–40.) Plaintiff has failed to oppose and therefore cannot meet its burden to show proper service or substantial compliance with the statute.

Any party may submit on the tentative ruling by contacting the courtroom via email at smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.