Judge: Robert S. Draper, Case: 21STCV34235, Date: 2022-08-04 Tentative Ruling

Case Number: 21STCV34235    Hearing Date: August 4, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Specially-Appearing Defendant David Aguinaga’s Motion to Quash Plaintiff’s Summons and Complaint is GRANTED.

FACTUAL BACKGROUND 

This is an action for workplace discrimination and wrongful termination. The Complaint alleges as follows.

Plaintiff Henry Sanchez (“Sanchez”) was employed by Defendant PBF Energy Limited and its related corporate entities (“PBF”) as a Pipeliner. (Compl. ¶ 11.) Defendant Joseph Aguinaga (“Aguinaga”) was his supervisor. (Ibid.)

While employed at PBF, Sanchez was regularly harassed based on his age. (Compl. ¶ 14(a-j).) Additionally, Sanchez complained to his superiors about unsafe work conditions. (Compl. ¶ 14(n).) Shortly thereafter, Defendants terminated Sanchez, claiming it was due to his work performance. (Compl. ¶ 15.)

PROCEDURAL HISTORY 

On September 16, 2021, Sanchez filed the Complaint asserting ten causes of action:

1.     Discrimination in Violation of FEHA;

2.     Harassment in Violation of FEHA;

3.     Retaliation in Violation of FEHA;

4.     Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of FEHA;

5.     Breach of Express Oral Contract Not to Terminate Employment Without Good Cause;

6.     Breach of Implied-In-Fact Contract Not to Terminate Employment Without Good Cause;

7.     Negligent Hiring, Supervision, and Retention;

8.     Violation of Labor Code § 1102.5;

9.     Wrongful Termination of Employment in Violation of Public Policy; and

10. Intentional Infliction of Emotional Distress.

On April 27, 2022, Sanchez filed Proof of Service of the Summons and Complaint as to Aguinaga.

On June 20, 2022, Aguinaga filed the instant Motion to Quash Service of Summons.

On June 27, 2022, Sanchez filed an Opposition.

On July 1, 2022, Aguinaga filed a Reply.

DISCUSSION 

I.                MOTION TO QUASH PLAINTIFF’S SUMMONS AND COMPLAINT

Specially-Appearing Defendant Joseph Aguinaga moves the Court to quash Plaintiff’s service of the Summons and Complaint pursuant to California Code of Civil Procedure section 418.10(a)(1).

“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: To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (Code Civ. Proc., § 418.10 (a)(1).) 

Here, Aguinaga notes that Plaintiff’s Counsel granted him an extension until June 20, 2022, to file a responsive pleading. (O’Dell Decl., ¶ 4, Ex. C.) Accordingly, the instant motion is timely.

Aguinaga argues Sanchez’s service of the Summons and Complaint was defective.

“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.” (Code Civ. Proc., § 415.10[emphasis added].)  “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(b).) 

The April 27, 2022, Proof of Service indicates that Process Server Gabriela Melendez (“Melendez”) served Aguinaga via substitute service at 22924 Evalyn Ave., Torrance, CA 90505. (O’Dell Decl., Ex. B.) Melendez states that she unsuccessfully attempted to serve Aguinaga at this address on April 22, 2022, April 23, 2022, and April 24, 2022. (Ibid.) On her first attempt, Melendez noted that there was a sign reading “Aguinaga” on the door. (Ibid.) On her third attempt, Melendez spoke with “John Doe,” who informed her that Aguinaga was not home at the time. (Ibid.) On her fourth attempt, Aguinaga served the Summons and Complaint on “John Doe” as Aguinaga’s co-occupant. (Ibid.) Finally, Melendez mailed the Summons and Complaint to the above address on April 25, 2022. (Ibid.)

Aguinaga argues that this service is ineffective, as Aguinaga no longer lives at that address, and indeed, no longer lives in the state. (Aguinaga Decl., ¶ 3.) Finally, Aguinaga notes that a public records request for his name provides several other addresses in Los Angeles County, and a more recent entry of a PO Box in Idaho, indicating that Aguinaga no longer resides in California. (Coleman Decl., ¶¶ 3-4.)

In Opposition, Sanchez argues that service was properly effectuated. (Opposition at p. 3.) Sanchez argues that “Leaving papers with an apparent co-resident at an address publicly registered by the defendant, as required by law, is a method of service reasonably calculated to achieve actual service.” (Opposition at p. 3; quoting Olvera v. Olvera (1991) 232 Cal.App.3d 32, 38.)

While it is true that Melendez’s actions would usually be sufficient to effectuate substitute service, here, where there was immediately available evidence that Aguinaga had moved out of state, the Court finds that there must be more diligence to ensure service is delivered to the proper address.

Next, Sanchez argues that the Court should find service effective as it is clear Aguinaga has actual notice of the Complaint. While actual knowledge is a factor in determining jurisdiction, where there is no evidence that Aguinaga has actually received the Complaint, the Court will not allow it to suffice for proper service.

Finally, Sanchez asks the Court to effect service through Defendant’s counsel. While the Court cannot compel Aguinaga to do so, it strongly encourages Aguinaga and his counsel to allow service through counsel so as to avoid burdensome motion practice and the time it wastes for both the parties and the Court.

Defendant David Aguinaga’s Motion to Quash Plaintiff’s Summons and Complaint is GRANTED.

DATED: August 4, 2022                  
      ________________________________ 
Hon. Robert S. Draper 

Judge of the Superior Court