Judge Stephen I. Goorvitch, Case 18STCV07163 2023-02-16 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 18STCV07163, Date: 2023-02-16 Tentative Ruling

Case Number: 18STCV07163 Hearing Date: February 16, 2023 Dept: 39

Evelyn Moreno v. Jewel Mehlman, et al.

Case No. 18STCV07163

Motion to Quash

Plaintiff Evelyn Moreno (“Plaintiff”) filed this action against Jewel Mehlman and Felicia Bander asserting causes of action for wage theft; failure to pay minimum wage; violations of Labor Code sections 1194.2, 202, and 203; and unfair competition in violation of Business and Professions Code section 17200. The initial complaint was filed on December 4, 2018, and the operative second amended complaint was filed on August 4, 2020.

Jewel Mehlman passed away on March 12, 2021. (Declaration of Joel Bander, ¶ 10.) Joel Bander, who was Jewel Mehlman’s son-in-law and an attorney, opened probate proceedings in May 2021, serving as the trustee of her estate. (Id., ¶ 11.) Plaintiff filed a creditor’s claim against the estate on June 21, 2021. (Id., ¶ 12 & Exh. J.) Bander rejected the claim on July 19, 2021. (Id., ¶ 12 & Exh. K.) Then, on August 2, 2021, Plaintiff filed a Doe amendment naming Joel Bander as a defendant in the instant case. (Id., ¶ 13 & Exh. K.) Plaintiff served Joel Bander by publication on September 16, September 23, September 30, and October 7, 2022. The proof of publication was filed on November 9, 2022.

Now, Joel Bander specially appears and moves to quash service of the summons and complaint. There is no dispute that Plaintiff is not seeking to name Joel Bander based upon any direct liability on his part. For this reason, the three-year service rule is not applicable. Rather, Plaintiff seeks to name Joel Bander in place of Jewel Mehlman as her personal representative following her death.

A cause of action against a decedent that survives death may be asserted against the decedent’s personal representative. (Code Civ. Proc., § 377.40.) In order to do so, a plaintiff must comply with the Probate Code’s requirements on filing creditor’s claims. (Code Civ. Proc., § 377.41.)

An action or proceeding pending against the decedent at the time of death may not be continued against the decedent’s personal representative unless all of the following conditions are satisfied: [¶] A claim is first filed as provided in part; [¶] The claim is rejected in whole or in part; [¶] Within three months after notice of rejection is given, the plaintiff applies to the court in which the action or proceeding is pending for an order to substitute the personal representative in the action or proceeding.

(Code Civ. Proc., § 9370(a).) Section 9370 includes no limitation on how a plaintiff “applies” to this Court to substitute a personal representative for a deceased defendant. In the absence of such a limitation, the Court interprets Plaintiff’s Doe amendment as satisfying this requirement. The Court does so for several reasons. First, the process of substituting a personal representative for a deceased defendant is ministerial in nature. Indeed, the Court has no discretion but to allow a plaintiff to do so. “On motion, the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent’s personal representative . . . .” (Code Civ. Proc., § 377.41.) For this reason, the Court does not interpret the Probate Code as requiring an ex parte application. Second, the Court relies upon the principle that cases should be resolved on the merits. Finally, the Court finds no undue prejudice to Joel Bander, as he faces no personal liability, since he is only being named as the personal representative of Jewel Mehlman.

Based upon the foregoing, the Court construes Plaintiff’s Doe amendment as her “applying” to the Court to substitute Joel Bander as the personal representative for Jewel Mehlman. The Court finds that Plaintiff did so within 90 days of her creditor’s claim having been rejected. Accordingly, the Court orders that Joel Bander, Trustee of the Mehlman Family Trust, be substituted as the personal representative of Defendant Jewel Mehlman, who is deceased.

Joel Bander has not stipulated to having been served. Therefore, the Court must address his argument that service by publication was ineffective. Unlike other service methods, a plaintiff must obtain a court order prior to serving a defendant via publication. Strict compliance with the statutory requirements is required. (County of Riverside v. Sup. Ct. (1997) 54 Cal.App.4th 443, 450.) To obtain an order for publication, the plaintiff must show reasonable diligence in serving the defendant by some other manner. (Code Civ. Proc., § 415.50, subd. (a).) The plaintiff must establish reasonable diligence via the testimony of an individual with personal knowledge of the efforts to serve the defendant. (Olvera v. Olvera (1991) 232 Cal.App.3d 32, 42.) In her application, Plaintiff advanced declarations of non-service from Plaintiff’s attorney service, in which the registered process server—Frank Harrigan—stated under penalty of perjury that he attempted to serve Defendant ten times between February 10, 2022, and March 23, 2022. (See Amended Application for Publication, Exhs. #5 and #6.)

Defendant advances evidence that he was at the location where the process server purportedly attempted to serve him on seven of the ten occasions, and that Defendant would have answered the door if the process server had knocked. (Declaration of Joel Bander, ¶¶ 18-33.) The Court finds Plaintiff’s process server’s declarations to be credible with respect to his efforts to serve Joel Bander. By contrast, the Court did not find Joel Bander’s declaration to be credible and finds that he was intentionally evading service for several reasons. First, the declaration of Joel Bander appears to be contrived given the level of detail in attempting to establish that he was home when the process server arrived and that he was not evading service. “[The gentleman] doth protest too much, methinks.” Second, Joel Bander has a motive to evade service, and he does not deny having known about this litigation. Such a representation would not be credible, given that Felicia Bander was served, and she was previously represented by Joel Bander’s counsel, and Joel Bander purportedly sent Plaintiff’s counsel a letter acknowledging that he was aware of this litigation. Finally, even now, Joel Bander, an attorney who now clearly has notice of these proceedings, has not agreed to simply accept service through his counsel or via email. Instead, he seeks to quash service of the summons and complaint and require Plaintiff to serve him personally. These are not the actions of someone who is willing to be served in this manner, consistent with his professional obligation as an attorney. This is especially true given that Plaintiff’s counsel can simply attempt to serve him again, given that the service deadline is not until August 2, 2024. For these reasons, the Court finds that Joel Bander’s declaration is not credible and finds that he was evading service in this matter.

CONCLUSION AND ORDER

Based upon the foregoing, the Court orders as follows:

1. The Court orders that Joel Bander, Trustee of the Mehlman Family Trust, be substituted as the personal representative of Defendant Jewel Mehlman, who is deceased.

2. The Court deems Joel Bander to have been served and denies his motion to quash.

3. The Court shall hold a case management conference on March 22, 2023, at 8:30 a.m.

4. The Court re-issues its Order to Show Cause why the deadline under Code of Civil Procedure section 583.310 should not be January 28, 2025, for the reasons stated in its order of October 26, 2022. The Court incorporates that order by reference. The Court shall hold a hearing on this issue on March 22, 2023, at 8:30 a.m. Absent good cause, the Court intends to re-set the five-year deadline for both defendants as January 28, 2025.

5. Plaintiff’s counsel shall provide notice and file proof of such with the Court.