Judge Stephen Morgan, Case 19AVCV00188 2022-09-15 Tentative Ruling

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG.

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.

This is an action arising from injuries suffered by Cheyenne Jones (“Cheyenne”) and Alysa Jones (“Alyssa” or, collectively, “Plaintiffs”) caused by three assaults and/or batteries occurring on March 1, 2018, October 12, 2018, and October 29, 2018 while Cheyenne and Alysa Jones were attending school at Lancaster High School, located at 44701 32nd Street W, Lancaster, CA 93536. Defendant Antelope Valley Union High School District ("AVUHSD”) was, and is, a public entity that oversees multiple schools, including Lancaster High School.

On March 6, 2019, Cheyenne Jones, Alysa Jones, and Theresa Hampton (collectively “Plaintiffs”) filed their Complaint.¿ The operative pleading is the Third Amended Complaint (“TAC”) filed on December 16, 2019 and containing¿causes of action for Statutory Negligence and Negligent Supervision.¿

On October 18, 2019, Plaintiffs amended the fictitious name of Doe 2 to Kristin Laughlin.

On February 5, 2020, Defendants AVUHSD, Antoinette Clark (“Clark”), Kristen Laughlin (“Laughlin”), and Ricardo De La Pena (“De La Pena” and collectively AVUHSD Defendants”) filed a Cross-Complaint against Maria Galaviz, Isaac Galaviz, Isabel Garcia, Shaneria Arnold, Karl Williams, and Marquita Matthews, Anya Jones, and Danielle Paris (parent or guardian of Anya Jones). The Cross-Complaint is dismissed as to Marquita Matthews and Karl Williams. Isaac Galaviz, Maria Galaviz, Shaneria Arnold, and Isabel Garcia are in default. Anya Jones and Danielle Paris have not responded.

On January 22, 2021, Defendant AVUHSD substituted their attorney Richard Oppenheim, Jr. (“Oppenheim, Jr.”) with Louis R. Dumont (“Dumont”).

On October 18, 2021, Plaintiffs amended the TAC by: (1) amending the ficticious name of Doe 3 to Kristen Tepper and (2) amending the fictitious name of Doe 4 to Jo Kim.

On February 03, 2022, Plaintiffs amended the Complaint by: (1) 1) withdrawing an amendment as to Doe 3 as Doe 3 was named in the TAC as Ricardo De La Pena, (2) amending the fictitious name of Doe 5 to Kristen Tepper, and (3) amending the fictitious name of Doe 6 to Lloyd Dunn (“Dunn”).

On September 01, 2022, Plaintiffs filed their Opposition to Defendant’s Motion to Quash Service of Summons and Complaint. No moving papers had been filed at this time.

On September 06, 2022, the Court inquired as to whether Dumont had intended to proceed with the hearing. Following this, Dumont filed Defendant Dunn’s Motion to Quash Service of Summons and Complaint (“Motion to Quash”). “Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) The moving papers are patently late. However, as “[n]o paper may be rejected for filing on the ground that it was untimely submitted for filing” and Plaintiffs are not prejudiced as an Opposition was timely filed, the Court takes the moving papers into consideration.

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:

“[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 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.)

Application – It appears that Dunn is moving under Cal. Code Civ. Proc. § 418.10(a)(1) - to quash service of summons on the ground of lack of jurisdiction of the court over him. Dunn argues that there has not been proper service of process. Specifically, Dunn argues that Cal. Code Civ. Proc. § 418.10 mandates that the Court quash service of a defective summons and complaint[1], that the summons and complaint served are defective under Cal. Code Civ. Proc. §474, and service was not completed.

Dunn argues that service was never completed as the summons and complaint were left at Dunn’s employer, but was not mailed thereafter.

In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and 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. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

As such, it appears that Dunn is arguing that he was served via substituted service.

In Opposition, Plaintiffs present that the summons and complaint were served upon Brianna McKendall (“McKendall”), who was authorized to receive service, by a process server. Plaintiffs argue that there is no evidence submitted by Dunn to show that McKendall is not a person authorized by Dunn to accept service.

Attached to the Opposition is Exhibit 2 which shows: (1) Dunn was served by Ronny Del Cid, a registered California process server, and service was to McKendall who was authorized to accept service.

Dunn argues that Plaintiff bears the burden to show that the person receiving the papers was authorized to accept service, that the process server’s statement in the proof of service is inadmissible, and that McKendall did not have ostensible authority to accept service for Dunn as an individual. Dunn highlights that McKendall works at the district office rather than Dunn’s school.

Plaintiffs’ argument relies on the process server’s statements and Cal. Code Civ. Proc. § 416.90 to justify valid service.

Cal. Evid. Code § 647 provides that a registered process server's declaration of service establishes a presumption that the facts stated in the declaration are true. (See Cal. Evid. Code §647 [“The return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.”; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750; American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.)

Cal. Code Civ. Proc. § 416.90 authorizes personal service on a defendant “by delivering a copy of the summons and of the complaint … to a person authorized by him to receive service of process.” (See Cal. Code Civ. Proc. § 416.90 [“A summons may be served on a person not otherwise specified in this article by delivering a copy of the summons and of the complaint to such person or to a person authorized by him to receive service of process.”]; Summers v. McClanahan (2006) 140 Cal.App.4th 403, 411.)

Dunn’s argument as to the validity of personal service on McKendall is that McKendall did not have authority as she works as a paralegal at the office of AVUHSD. The only evidence provided is McKendall’s declaration stating that she works at the legal services division at AVUHSD; was working in this capacity on July 25, 2022; on July 25, 2022, received the service package for Dunn who works at one of AVUHSD’s high schools; the documents included an attachment naming Dunn as Doe 6; and the documents were accepted by her. (Decl. McKendall ¶¶ 3-4.)

The Court finds this sufficient. Dunn is being sued in his individual capacity. AVUHSD has been served separately.

The liberal and practical approach to service of process has been followed in subsequent Court of Appeal decisions. In Gibble v. Car-Lene Research, Inc. the court stated: “It is well settled that strict compliance with statutes governing service of process is not required. Rather, in deciding whether service was valid, the statutory provisions regarding service of process should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant.”

Nevertheless there are cases decided after the enactment of the revised statutes which have continued to apply the strict construction rule. In Taylor-Rush v. Multitech Corp., for example, the court stated: “A defendant is under no duty to respond to a defectively served summons. The notice requirement is not satisfied by actual knowledge of the action without service conforming to the statutory requirements, which are to be strictly construed.”

“In its comments on [Cal. Code Civ. Proc. § 416.90,] the Judicial Council stated: ‘If the process is delivered to an agent of defendant, such agent must be one who is authorized by law or appointment to receive service of process, and the agent of an individual for other purposes is not necessarily authorized to receive such process.’ In Doherty & Co. v. Goodman, the United States Supreme Court provided guidance for determining who is a proper agent for acceptance of service on behalf of a defendant. The court concluded a specific appointment is not required, but the principal-agent relationship must be close and enduring enough to make it highly probable the defendant will receive actual notice.” (Id. at 411-12; see also Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1438[In regards to Cal. Code Civ. Proc. § 416.90, “[a] person who is authorized to perform one function on behalf of a principal may have no authority at all regarding a different function”]) The Court notes that Doherty & Co. v. Goodman is distinguished slightly as the context was one of an out of state securities dealer with multiple offices rather than an individual. (See Henry L. Doherty & Co. v. Goodman (1935) 294 U.S. 623 generally.)

Here, McKendall is a paralegal for AVUHSD. It is likely that she was able to accept service for Dunn in his official capacity; however, the issue presented before the Court is McKendall’s ability to accept service for Dunn in his individual capacity.

Generally, when a defendant challenges the court's personal jurisdiction on the ground of improper service of process “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 Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440.) In this case, there was a presumption of valid service and Dunn provided evidence that McKendall was not authorized to accept service for him as an individual.

Plaintiff does not provide any argument other than the presumption argument in conjunction with Cal. Code Civ. Proc. § 416.90.

Here, while actual notice was received, it does not appear that the relationship between Dunn and McKendall is close enough that it was “highly probable” Dunn would receive actual knowledge. Rather, it is the fact that McKendall notified AVUHSD’s counsel, Louis Dumont, that led to Dunn’s actual notice of the allegations against him.

Defendant Lloyd Dunn’s Motion to Quash Service of Summons and Complaint is GRANTED.

[1] Though the Court addresses the issue of service in general terms, i.e., summons and complaint, the Court notes that the complaint in question is the operative TAC.