Judge: Steven A. Ellis, Case: 22STCV00771, Date: 2024-02-29 Tentative Ruling
Case Number: 22STCV00771 Hearing Date: April 9, 2024 Dept: 29
Motion to Quash filed by Specially
Appearing Defendants Angel
Plumbing Co. and Pedro Alberto Galeas.
Tentative
The motion is denied without prejudice.
BACKGROUND
On January 7, 2022,
Plaintiff Girolamo Rindone (“Plaintiff”) filed the complaint in this action against
Angel Plumbing Co. (“Angel”), Pedro Albert Galeas (“Galeas”) and Does 1 through
100, asserting causes of action for motor vehicle negligence and general negligence
arising from an automobile accident occurring on January 8, 2020, on Benedict
Canyon Drive in Beverly Hills.
On October 17, 2023, Plaintiff
filed a proof of service stating that Defendant Galeas was served by substitute
service on his wife at his home on October 13, 2023, followed by mail service
on October 17.
On November 17, 2023, counsel purporting to represent Defendants
Angel and Galeas (specially appearing) filed this motion to quash
service. As set forth in the evidence supporting the motion,
Defendant Galeas died on February 28, 2021. (Feldman Decl., ¶ 7
& Exh. C.)
No opposition was filed.
On
February 29, 2024, the motion to quash came on for hearing. The Court continued the hearing so that
counsel for Defendant Galeas could explain under what authority he was bringing
a motion on behalf of a deceased person.
The Court also noted that Plaintiff must consider how to proceed with
this action, as any judgment against a deceased person is likely to be void or
voidable.
On
March 7, 2024, counsel for Defendant Galeas filed a supplemental memorandum.
Plaintiff
has still not filed any opposition.
LEGAL STANDARD
Coe of Civil Procedure section 415.10
provides the requirements of personal service of summons and the complaint as
follows: “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. The date upon which personal delivery is made
shall be entered on or affixed to the face of the copy of the summons at the
time of its delivery. However, service of a summons without such date shall be
valid and effective.”
“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.’” (Summers v. McClanahan (2006) 140
Cal.App.4th 403, 413.) Although the filing of a proof of service by a
registered process server creates a rebuttable presumption that service was
proper (see Evid. Code § 647), that presumption may be impeached by contrary
evidence submitted by a defendant. (See, e.g., Fernandes v. Singh (2017)
16 Cal.App.5th 932, 941 n.6.)
Code of Civil Procedure section §418.10, subdivision
(a)(1), provides that, “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… To quash service of summons on
the ground of lack of jurisdiction of the court over him or her.”
If service of summons is not properly and
validly effectuated by one or more of the approved methods, California courts
lack personal jurisdiction over the defendants, and any judicial actions taken
without such service violates principles of fundamental due process and is
therefore void. (Cnty. of San Diego v. Gorham (2010) 186 Cal.App.4th
1215, 1231.)
DISCUSSION
Defendant Galeas died on February 28, 2021.
(Feldman Decl., ¶7; Exh. C, Death Certificate.)
Thus, he could not have been served (through substitute service or
otherwise) in October 2023, as Plaintiff contends.
But before reaching of the merits of the
motion to quash, the threshold question arises of the authority of counsel to
act for a deceased individual. Counsel
submits a declaration from Defendant Galeas’s widow, Mayra Galeas, granting her
such authority. (Galeas Decl., ¶ 6.)
But this declaration does not state the Mrs. Galeas is administrator or
personal representative of Defendant Galeas’s estate, or otherwise has any
authority for her to act on behalf of the estate.
Accordingly, the Court cannot grant the
motion.
Both Plaintiff and the insurer purporting
to act on behalf of Defendant Galeas have statutory options regarding how to
proceed in a procedurally proper manner.
As long as they choose not to pursue them, however, the Court has a very
limited ability to issue an order granting any motion.
The motion to quash is DENIED without prejudice.
CONCLUSION
AND ORDER
The Court DENIES
the motion to quash without prejudice.
The Court sets an
OSC re dismissal in approximately 30 days for Plaintiff’s failure to file a
valid proof of service with the Court and for delay in prosecution of this
action pursuant to Code of Civil Procedure sections 583.410 and 583.420, subdivision (a)(1). Any response from Plaintiff’s
counsel to the OSC must be in writing and must be filed at least five calendar
days prior to the OSC hearing. Plaintiff
is advised that if no response is filed, or if there is no adequate explanation
for the delay in prosecution, the action may be dismissed.
The Judicial
Assistant is requested to provide notice.