Judge: Steven A. Ellis, Case: 22STCV00771, Date: 2025-05-05 Tentative Ruling
Case Number: 22STCV00771 Hearing Date: May 5, 2025 Dept: 29
Rindone v. Angel Plumbing Co.
22STCV00771
Motion to Quash Service of Summons filed by Specially Appearing Defendant Angel
Plumbing Co.
Motion to Dismiss for Failure to Serve Summons within 3 years filed by Specially
Appearing Defendant Angel Plumbing Co.
Tentative
The Court will
call this matter.
Background
On January 7,
2022, Girolamo Rindone (“Plaintiff”) filed a complaint against Angel Plumbing
Co. (“APC”), Pedro Alberto Galeas (“Galeas”), and Does 1 through 100 for motor
vehicle negligence and general negligence arising out of an accident on January
8, 2020 on Benedict Canyon Drive in Beverly Hills.
On November 17,
2023, counsel purporting to represent Defendant Galeas brought a motion to
quash service of the summons. The Court denied the motion, without prejudice,
as it was reported to the Court that Defendant Galeas had died in February
2021, and it was not clear what authority (if any) counsel had to act on behalf
of the decedent. As the Court explained at that time:
(Minute Order
dated April 9, 2024.)
On April 1,
2025, Plaintiff filed a proof of personal service as to APC.
Currently before
the Court and set for hearing on May 5, 2025, are two motions.
First, on April
4, 2025, APC filed a motion to quash service of summons.
Second, on April
9, 2025, APC filed a motion to dismiss.
Plaintiff filed
an opposition to the motion to dismiss on April 22. APC filed a reply on April
24.
Plaintiff did
not file an opposition to the motion to quash.
Legal Standard
Motion to Quash
The
various methods for service of a summons and complaint are set forth in Code of
Civil Procedure sections 415.10 through 416.90.
“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 rebutted by contrary evidence. (See, e.g., Fernandes
v. Singh (2017) 16 Cal.App.5th 932, 941 fn.6.)
In
ruling on a motion to quash service of summons, the trial judge acts as the
finder of fact and can resolve any conflicts in the evidence. (Kroopf v.
Guffey (1986) 183 Cal.App.3d 1351, 1356.)
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.)
Motion
to Dismiss
Code of Civil Procedure section 583.210 requires service of
the summons and complaint within three years of filing:
“The
summons and complaint shall be served upon a defendant within three years after
the action is commenced against the defendant.
For the purpose of this subdivision, an action is commenced at the time
the complaint is filed.”
(Code Civ. Proc., § 583.210, subd. (a).)
Code of Civil Procedure section 583.250 provides for mandatory
dismissal if the summons and complaint are not served within three years of
filing:
“(a)
If service is not made in an action within the time prescribed in this article:
(1)
The action shall not be further prosecuted and no further proceedings shall be
held in the action.
(2)
The action shall be dismissed by the court on its own motion or on motion of
any person interested in the action, whether named as a party or not, after
notice to the parties.
(b)
The requirements of this article are mandatory and are not subject to
extension, excuse, or exception except as expressly provided by statute.”
(Code Civ. Proc., § 583.250.)
The statutory exceptions to this mandatory
dismissal rule are set forth in Code of Civil Procedure section 583.240:
“In
computing the time within which service must be made pursuant to this article,
there shall be excluded the time during which any of the following conditions
existed:
(a)
The defendant was not amenable to the process of the court.
(b)
The prosecution of the action or proceedings in the action was stayed and the
stay affected service.
(c)
The validity of service was the subject of litigation by the parties.
(d)
Service, for any other reason, was impossible, impracticable, or futile due to
causes beyond the plaintiff’s control. Failure to discover relevant facts or
evidence is not a cause beyond the plaintiff’s control for the purpose of this
subdivision.”
(Code Civ. Proc., § 583.240.)
Discussion
The Court has received information that the
business entity APC has been suspended. (Tissot Decl., Exh. D.) A suspended
corporation lacks the capacity to sue and, if sued, it lacks the capacity to
defend. Nor may an attorney represent a suspended corporation in court and seek
any relief on its behalf.
The Court will call this matter and inquire
whether APC is a suspended corporation. If so, then: (1) both motions will be placed
off calendar without prejudice (subject to potential renewal if APC resolves
its suspension and returns to good standing); and (2) the Court will set an
Order to Show Cause as to why the entire action should not be dismissed under Code
of Civil Procedure sections 583.210 and 583.250.
Motion to Quash
On April 1, 2025, Plaintiff filed a proof of
service. According to the proof, APC was served by personal delivery of the
summons and complaint to an individual named “Chris Munos” at an address
identified as “Isabel Munoz – State Farm Insurance Agent, 3804 W. Burbank
Boulevard, Suite A, Burbank, CA 91505.”
In support of the motion, APC filed a
declaration from Angel Muriedas, the owner of APC. (Muriedas Decl., ¶ 2.) Mr.
Muriedas testifies that neither Chris Munoz nor Isabel Munoz is an authorized
representative of APC and that neither is employed by or associated in any way with
APC. (Id., ¶ 3.) Moreover, the service was effected at an address that
was a previous location for APC, but APC stopped doing business at that
location in 2006. (Id., ¶¶ 4-5.) APC has not received any documents
from any person or entity on behalf of Plaintiff. (Id., ¶ 6.)
The Court’s tentative ruling is to credit the
declaration of Mr. Muriedas.
The burden is on Plaintiff to show that
service was proper. The Court’s tentative ruling is that Plaintiff has not met
that burden, and that the motion to quash is granted.
The Court will call this matter.
Motion to Dismiss
APC seeks to dismiss Plaintiff’s complaint as
to it, Defendant Pedro Alberto Galeas, and Does 1 to 100 under Code of Civil
Procedure section 583.210 as service was not made within three years of filing
Plaintiff’s complaint.
The Court will call this matter.
The Court’s tentative ruling is to deny the
motion as to Defendant Galeas, who died in February 2021 (after the accident
but before the complaint was filed). Although Plaintiff has procedurally proper
statutory options regarding how to proceed with the cause of action against a decedent,
Plaintiff appears not to have done so. The Court also notes that there was a
substantial period of time in which the validity of service as to Defendant
Galeas was the subject of litigation by the parties.
The Court’s tentative ruling is to grant the
remainder of the motion. The defendants were not served during the three-year
period after the filing of the complaint, and none of the statutory exclusions
set forth in Code of Civil Procedure section 583.240 applies.
Conclusion
The Court will call this matter.