Judge Teresa A. Beaudet, Case Number: 22STCV16359, Date: 2024-01-31 Tentative Ruling

MEIR LEVY,

Plaintiff,

vs.

TOVA FAGAN, et al.

Defendants.

Case No.:

22STCV16359

Hearing Date:

February 16, 2024

Hearing Time: 2:00 p.m.

[TENTATIVE] ORDER RE:

DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT;

DEFENDANTS TOVA FAGAN AND YAEL SIMA WINTNER’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT

Plaintiff Meir Levy (“Plaintiff”) filed this action on May 17, 2022 against Defendants Tova Fagan and Yael Sima Wintner.

On July 11, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”), alleging causes of action for (1) extortion, (2) conspiracy to commit fraud, (3) intentional infliction of emotional distress, and (4) negligent infliction of emotional distress.

In the FAC, Plaintiff alleges that he and the defendants’ mother Sarah Wintner were married on December 25, 1983. (FAC, ¶ 14.) Plaintiff alleges that “[d]efendants Tova Fagan, Yael Wintner and Paul Wintner are the stepchildren of Plaintiff Meir Levy and the biological children of Decedent, Sarah Wintner.” (FAC, ¶ 15.) Plaintiff alleges that “[o]n or about July 2, 2019, Plaintiff and Decedent Sarah Wintner executed The Meir Levy and Sarah C. Wintner 2019 Trust (‘2019 Trust.’).” (FAC, ¶ 18.) Plaintiff alleges that “[w]hen the Defendants discovered the contents of the 2019 Trust, they became irate, irrational, volatile and angry. They began to harass Plaintiff and their dying mother Sarah.” (FAC, ¶ 19.) Plaintiff alleges that “[i]n or around December, 2019, after discovering the distribution of assets per the 2019 Trust, the Wintner Defendants threatened Plaintiff Meir Levy with criminal accusations of childhood rape if Plaintiff Levy did not change the 2019 Trust to give the Wintner Defendants more assets.” (FAC, ¶ 23.)

Tova Fagan and Yael Sima Wintner (jointly, “Defendants”) now demur to each of the causes of action of the FAC. Defendants also move to strike portions of the FAC. Plaintiff opposes both.

Defendants assert that the first cause of action for civil extortion fails to state facts sufficient to constitute a cause of action.

Defendants cite to Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 426, disapproved of on other grounds by Silberg v. Anderson (1990) 50 Cal.3d 205, 219. In Fuhrman, the Court of Appeal noted that “[h]owever denominated (e.g., extortion, menace, duress), our Supreme Court has recognized a cause of action for the recovery of money obtained by the wrongful threat of criminal or civil prosecution. It is essentially a cause of action for moneys obtained by duress, a form of fraud. To be actionable the threat of prosecution must be made with the knowledge of the falsity of the claim. In her first cause of action, plaintiff does not allege defendants knew their claims were false, other than a general statement that their conduct amounted to fraud. This can be cured by amendment. The fatal flaw in plaintiff’s action is that she apparently never paid the money defendants demanded in their letters. The only actual damages plaintiff alleges are her emotional distress and attorney fees.” (Internal quotations and citations omitted, emphasis in original.) Defendants assert that here, Plaintiff “has not, and cannot possibly, allege that he paid anything to any Defendant. Therefore, he has no cause of action for extortion…” (Demurrer at p. 5:3-4.)

In the opposition, Plaintiff contends that “Defendants claim that money must have changed hands or that Plaintiff must have given the property to the Defendants before Plaintiff can maintain a civil extortion claim. However, subsequent cases contradict this argument.” (Opp’n at p. 7:20-22.) In support of this assertion, Plaintiff cites to Flatley v. Mauro (2006) 39 Cal.4th 299, 305, where “Plaintiff Michael Flatley…sued defendant D. Dean Mauro, an attorney, for civil extortion, intentional infliction of emotional distress and wrongful interference with economic advantage. Flatley’s action was based on a demand letter Mauro sent to Flatley on behalf of Tyna Marie Robertson, a woman who claimed that Flatley had raped her, and on subsequent telephone calls Mauro made to Flatley’s attorneys, demanding a seven-figure payment to settle Robertson’s claims.” The Court of Appeal concluded that “Mauro’s communications constituted criminal extortion as a matter of law and, as such, were unprotected by constitutional guarantees of free speech or petition.” (Ibid.)

Plaintiff notes that the Flatley Court cited Penal Code section 523, which provides that “[e]very person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat.” (Flatley v. Mauro, supra, 39 Cal.4th at p. 326, citing Pen. Code, § 523.) Defendants do not appear to address this statute in their reply.

In the demurrer, Defendants also cite to People v. Franquelin (1952) 109 Cal.App.2d 777, 783, where the Court of Appeal noted that “[e]very person who attempts, by means of any threat such as is specified in section 519, to extort money from another is guilty of a public offense. (Pen. Code, § 524.)…To commit the offense of attempt to commit extortion there must be a specific intent to commit the crime, and a direct ineffectual act done toward its commission.” Defendant asserts that “[t]here was no factual allegation of any criminal intent on the part of Defendants in the FAC.” (Demurrer at p. 5:15-16.) But in the FAC, Plaintiff alleges that “[t]he Wintner Defendants’ intentional infliction of harm upon Plaintiff Meir Levy through their extortionate misconduct alleged hereinabove was and is tortious, as well as criminal.” (FAC, ¶ 27.)

Defendants also argue that “[t]he alleged threats were insufficiently plead, are uncertain, and fails [sic] to allege sufficient facts to constitute a cause of action.” (Demurrer at p. 7:11-12.) Defendants cite to paragraph 23 of the Complaint, which alleges that “[i]n or around December, 2019, after discovering the distribution of assets per the 2019 Trust, the Wintner Defendants threatened Plaintiff Meir Levy with criminal accusations of childhood rape if Plaintiff Levy did not change the 2019 Trust to give the Wintner Defendants more assets.” (Compl., ¶ 23.) Defendants assert that “it is unclear if any changes in the ‘2019 Trust’ would have amounted to Plaintiff losing any money or items of value to begin with. This was not an alleged threat for Plaintiff to pay anything out of his own pocket, and it was never alleged that Plaintiff himself will ever lose money or anything of value.” (Demurrer at p. 7:25-28.) Plaintiff does not appear to respond to this point in the opposition. As discussed, in Flatley, cited by Plaintiff, the Court of Appeal noted that “[e]xtortion is the obtaining of property from another, with his consent…induced by a wrongful use of force or fear…Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat.” (Flatley v. Mauro, supra, 39 Cal.4th at p. 326 [internal quotations and citations omitted].) As noted by Defendants, Plaintiff appears to allege that Defendants sought to obtain more assets from the “2019 Trust,” not Plaintiff specifically. (See, e.g., FAC, ¶ 23.)

Based on the foregoing, the Court sustains Defendants’ demurrer to the first cause of action, with leave to amend.

In the second cause of action for conspiracy to commit fraud, Plaintiff alleges that “[t]he mere fact that the Wintner Defendants would use fabricated lies, such as childhood rape, verbal threats of violence to Plaintiff and maliciously and intentionally threaten to kill Plaintiff if they (the Wintner Defendants) did not get exactly what they desired or deemed to be fair as their inheritance is a definitive example of Conspiracy to Commit Fraud.” (FAC, ¶ 32.)

The Court notes that in AREI II Cases (2013) 216 Cal.App.4th 1004, 1021-1022, the Court of Appeal found that “[c]onspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. A civil conspiracy must be activated by the commission of an actual tort. In this case, the underlying tort is common law fraud. The elements of common law fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. Morgan Keegan does not dispute that the complaint adequately states a cause of action for fraud against AREI. Instead, Morgan Keegan argues that the conspiracy allegations are insufficient to establish that it should bear liability for the actions of AREI. To support a conspiracy claim, a plaintiff must allege the following elements: (1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct.” (Internal quotations and citations omitted.)

In the demurrer, Defendants assert that “Plaintiff makes zero allegation of reliance…” (Demurrer at p. 10:3 [internal quotations omitted].) Defendants assert that “Plaintiff allegedly already ‘knew’ the threats were false as soon as they were made. Thus…Plaintiff did not detrimentally rely on any misrepresentations as a matter of law…Further, the FAC fails to allege that Plaintiff paid any money to Defendants whatsoever, there was simply no ‘reliance’ herein.’” (Demurrer at p. 10:18-21.) In the opposition, Plaintiff does not appear to point to any allegations of “justifiable reliance” to support a claim for fraud. The Court notes that “[a] complaint for civil conspiracy states a cause of action only when it alleges the commission of a civil wrong that causes damage. Though conspiracy may render additional parties liable for the wrong, the conspiracy itself is not actionable without a wrong.” ((Okun v. Superior Court (1981) 29 Cal.3d 442, 454.)

Based on the foregoing, the Court sustains Defendants’ demurrer to the second cause of action, with leave to amend.

Next, Defendants assert that the third cause of action for intentional infliction of emotional distress is deficient. “¿A cause of action for intentional infliction of emotional distress exists when there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.¿” (¿Hughes v. Pair (2009) 46 Cal.4th 1035, 1050¿ [internal quotations omitted].) “A defendant’s conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id. at pp. 1050-1051 [internal quotations omitted].)

Defendants first assert that “[g]iven the conclusory and vague nature of the FAC’s allegations regarding the alleged ‘threats,’ Defendant fails to state a cause of action for intentional infliction of emotional distress.” (Demurrer at p. 11:10-11.) The Court does not find that Defendants have shown that the alleged threats are conclusory or vague. As discussed, Plaintiff alleges, inter alia, that “Defendants have continued to threaten Plaintiff Meir Levy with criminal action alleging accusations of rape, if he did not increase their inheritance and Plaintiff Meir Levy believes that the latest threat happened on or about April 21, 2021.” (FAC, ¶ 25.) Plaintiff also alleges that “Defendant Yael Wintner became increasingly angry, threatening to buy a gun and shoot Plaintiff Meir Levy in the head. She also threatened to kill David Levy, the son of Plaintiff and decedent Sarah Wintner, and his then girlfriend.” (FAC, ¶ 22.)

Next, Defendants assert that “[t]he FAC fails to allege that Defendants intended to inflict injury or realized injury will result, nor that the conduct was so outrageous that it exceeds all bounds—this is a very tall requirement that Plaintiff’s vague and undescriptive FAC fails to meet.” (Demurrer at p. 11:11-14.) But Plaintiff alleges that “[t[he Wintner Defendants’ conduct was outrageous and intended to cause emotional distress.” (FAC, ¶ 43.) Plaintiff also alleges that “[t]he Wintner Defendants acted with reckless disregard of the probability that Plaintiff Meir Levy would suffer emotional distress…” (FAC, ¶ 42.) The Court also does not find that Defendants have shown that the alleged conduct is not “outrageous.” As discussed, the Court does not find that Defendants have shown that the alleged threats are conclusory or vague.

Defendants also argue that the third cause of action is time-barred, but do not cite any legal authority supporting such assertion.

Based on the foregoing, the Court does not find that Defendants have shown that the third cause of action is deficient. The Court thus overrules Defendants’ demurrer to the third cause of action.

In the demurrer, Defendants assert that “Plaintiff has included a cause of action for Negligent Infliction of Emotional Distress, which simply does not exist.” (Demurrer at p. 12:11-12.) Defendants cite to Lawson v. Management Activities (1999) 69 Cal.App.4th 652, 656, where the Court of Appeal held as follows:

In the opposition, Plaintiff asserts that “CACI recognizes a cause of action for NIED,” citing CACI 1620. (Opp’n at p. 12:12-13.) But CACI 1620 concerns “Negligence – Recovery of Damages for Emotional Distress – No Physical Injury – Direct Victim – Essential Factual Elements.” In addition, the “Directions for Use” for CACI 1620 provides, “[u]se this instruction in a negligence case if the only damages sought are for emotional distress. The doctrine of ‘negligent infliction of emotional distress’ is not a separate tort or cause of action. It simply allows certain persons to recover damages for emotional distress only on a negligence cause of action even though they were not otherwise injured or harmed. ((See Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 928 [167 Cal.Rptr. 831, 616 P.2d 813].)” (Judicial Council Of California Civil Jury Instruction 1620.) Here, Plaintiff has not cited any legal authority stating that negligent infliction of emotional distress is an independent tort or cause of action.

Based on the foregoing, the Court sustains Defendants’ demurrer to the fourth cause of action, without leave to amend.

A court may strike any “¿irrelevant, false, or improper matter¿inserted in any pleading¿” or any part of a pleading “¿not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.¿” (¿¿Code Civ. Proc., § 436¿¿.) “¿The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.¿” (¿Code Civ. Proc., § 437¿.)¿¿

Defendants move to strike Plaintiffs’ punitive damages allegations. As an initial matter, the Court sustains Defendants’ demurrer to the first cause of action for civil extortion. Thus, Defendants’ motion to strike paragraph 29 of the FAC is denied as moot.

Defendants also move to strike paragraph 47 of the FAC, which alleges that “[t]he Wintner Defendants’ actions were willful, and wanton and their misconduct was not committed out of any sincere or proper motive but was committed with actual malice, fraud, and oppression, thereby entitling Plaintiff Meir to an award of punitive damages in accordance with proof at trial.” (FAC, ¶ 47.) In addition, Defendants move to strike the request in the Prayer for Relief for “[p]unitive damages in an amount to be proven at trial.” (FAC, p. 8:3.)

A motion to strike may lie where the facts alleged do not rise to¿the level of “malice,¿oppression¿or fraud” required to support a punitive damages award. (¿¿See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63-64¿¿.)¿“¿‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.¿” (¿¿Civ. Code, § 3294, subd. (c)(1)¿¿.) “¿‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.¿” (Civil Code section 3294, subdivision (c)(2)¿.) “¿‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.¿” (Civil Code section 3294, subdivision (c)(3)¿.)¿

Defendants assert that “Plaintiff’s FAC does not allege specific facts demonstrating the requisite fraud, oppression or malice required for punitive damages.” (Mot. at p. 4:7-8.) The Court disagrees and finds that Plaintiff had adequately alleged “malice” and “oppression” for purposes of Plaintiff’s request for punitive damages. As discussed, the Court overrules Defendants’ demurrer to the third cause of action for intentional infliction of emotional distress. As stated, Plaintiff alleges, inter alia, that “Defendant Yael Wintner became increasingly angry, threatening to buy a gun and shoot Plaintiff Meir Levy in the head. She also threatened to kill David Levy, the son of Plaintiff and decedent Sarah Wintner, and his then girlfriend.” (FAC, ¶ 22.) Plaintiff further alleges that “[t]his case involves a vicious and criminal scheme by Defendants Tova Fagan and Yael Sima Wintner…and others to extort property through false accusations of rape.” (FAC, ¶ 1.) Plaintiff alleges that “[t]he Wintner Defendants’ conduct was outrageous and intended to cause emotional distress.” (FAC, ¶ 43.)

Based on the foregoing, the Court denies Defendants’ motion to strike paragraph 47 of the FAC and paragraph 3 of the Prayer for Relief.

Based on the foregoing, Defendants’ demurrer to the first and second causes of action is sustained, with leave to amend. Defendants’ demurrer to the fourth cause of action is sustained, without leave to amend. Defendants’ demurrer to the third cause of action is overruled.

In addition, based on the foregoing, the Court denies Defendants’ motion to strike paragraph 29 of the FAC as moot. The Court also denies Defendants’ motion to strike paragraph 47 of the FAC and paragraph 3 of the Prayer for Relief.

Plaintiff is ordered to file and serve an amended complaint, if any, within 20 days of the date of this order. If no amended complaint is filed within 20 days, the Court orders Defendants to file and serve their answer to the FAC within 30 days of the date of this order.

Superior Court of California

County of Los Angeles

Department 50

MEIR LEVY,

Plaintiff,

vs.

TOVA FAGAN, et al.

Defendants.

Case No.:

22STCV16359

Hearing Date:

February 16, 2024

Hearing Time: 2:00 p.m.

[TENTATIVE] ORDER RE:

SPECIALLY APPEARING DEFENDANT PINCHAS (PAUL) WINTNER’S MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

Plaintiff Meir Levy (“Plaintiff”) filed this action on May 17, 2022 against Defendants Tova Fagan, Yael Sima Wintner, and Does 1-20.

On July 11, 2023, Plaintiff filed an Amendment to Complaint naming Pinchas (Paul) Wintner in place of Doe 1.

Defendant Pinchas (Paul) Wintner (“Paul Wintner”) now “specially appears to move to quash service of [Plaintiff’s] summons and complaint.” Plaintiff opposes.

“When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint . . . and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly[.]” ((Code Civ. Proc., § 474.)

“When a defendant is properly named under section 474, the amendment relates back to the filing date of the original complaint. Section 474 provides a method for adding defendants after the statute of limitations has expired, but this procedure is available only when the plaintiff is actually ignorant of the facts establishing a cause of action against the party to be substituted for a Doe defendant. The question is whether [the plaintiff] knew or reasonably should have known that he had a cause of action against [the defendant]. Ignorance of the facts giving rise to a cause of action is the ignorance required by section 474, and the pivotal question is, did plaintiff know facts? not did plaintiff know or believe that [he] had a cause of action based on those facts? Although it is true that a plaintiff’s ignorance of the defendant’s name must be genuine (in good faith) and not feigned…and that a plaintiff need not be aware of each and every detail concerning a person’s involvement before the plaintiff loses his ignorance…it is equally true that the plaintiff does not relinquish [his] rights under section 474 simply because [he] has a suspicion of wrongdoing arising from one or more facts [he] does know.” ((McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371-372 [internal quotations, citations, and emphasis omitted].)

“[S]ection 474 includes an implicit requirement that a plaintiff may not unreasonably delay his or her filing of a Doe amendment after learning a defendant’s identity.” ((A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066-1067 [internal quotations omitted].) “[A] defendant named in an action by a Doe amendment under section 474 may challenge the amendment by way of an evidence-based motion, which argues that the plaintiff unreasonable [sic] delayed his or her filing of the challenged amendment.” (Id. at p. 1067 [internal quotations omitted].) “[U]nreasonable delay within the meaning of [Barrows v. Am. Motors Corp. (1983) 144 Cal.App.3d 1] includes a prejudice element, which requires a showing by the defendant that he or she would suffer prejudice from plaintiff’s delay in filing the Doe amendment.” ((Ibid. [internal quotations omitted].)

In the instant motion, Paul Wintner asserts that “Plaintiff cannot refute that he has known PAUL’s identity and facts sufficient to support a cause of action against PAUL before filing the original Complaint.” (Mot. at p. 7:16-17.) In his declaration in support of the motion, Paul Wintner states that “Plaintiff MEIR LEVY is my step-father,” and that “I’ve known him my entire life…” (Paul Wintner Decl., ¶¶ 2, 4.)

In the opposition, Plaintiff asserts that “[t]here is no argument that Plaintiff knew his stepson’s identity when the initial Complaint was filed but he was unaware of his involvement until much later. Therefore, the FAC was filed on July 11, 2023, along with a DOE Amendment that same day naming Pinchas (Paul) Wintner as the DOE defendant.” (Opp’n at p. 3:11-15.)

In his declaration in support of the opposition, Plaintiff states that “[a]t the time the original complaint was filed, I was unaware of any involvement by Paul. Shortly thereafter, my son David and I started reviewing e-mails and texts on my deceased wife’s phone. We determined that Paul was also putting pressure on my wife as to her assets and communicating to her regarding the alleged acts complained of by Tova and Yael.” (Levy Decl., ¶ 4.) Plaintiff also states in his declaration, “attached hereto as Exhibit ‘2’ is text message between Paul and my son Gal Levy that was apparently sent in 2021 but I didn’t become aware of it until late 2022.” (Levy Decl., ¶ 4.) Plaintiff asserts that “[t]his text demonstrates that Paul was aware of what his sisters were planning, and he was acting on their behalf and in concert with them. Based on these texts and e-mails, I now believe that he was working in concert with Tova and Yael to extort me and cause me emotional distress to force me to amend the 2019 Trust/Will and give him and his sisters a larger piece of inheritance, than originally planned by their deceased Mother.” (Levy Decl., ¶ 4.) Plaintiff’s Exhibit “2” includes a message stating, inter alia, “[i]t’s ok it’s a mess i tried to reach out to David and said let’s figure something out so my sisters won’t sue. He says i was bad for even talking about it really? I’m trying to prevent a war that’s gonna get very dirty when they both start bringing up how they were abused and molested and how they made my mom live in fear to get everything. I told David he can even keep my portion just let them get the third…” (Levy Decl., ¶ 4, Ex. 2.)

Plaintiff notes that “[i]f the identity of the Doe defendant is known but, at the time of the filing of the complaint the plaintiff did not know facts that would cause a reasonable person to believe that liability is probable, the requirements of section 474 are met. Section 474 allows a plaintiff in good faith to delay suing particular persons as named defendants until he has knowledge of sufficient facts to cause a reasonable person to believe liability is probable. The fact that the plaintiff had the means to obtain knowledge is irrelevant. In short, section 474 does not impose upon the plaintiff a duty to go in search of facts she does not actually have at the time she files her original pleading.” ((McOwen v. Grossman (2007) 153 Cal.App.4th 937, 943-944 [internal quotations and citations omitted].)

Based on the foregoing, the Court finds that Plaintiff has sufficiently demonstrated that “the identity of the Doe defendant is known but, at the time of the filing of the complaint [Plaintiff] did not know facts that would cause a reasonable person to believe that liability is probable…” ((Id. at p. 943.) As set forth above, in such circumstances, “the requirements of section 474 are met.” (Ibid.)

In the reply, Paul Wintner appears to assert that Plaintiff’s claims against him are without merit. Paul Wintner asserts, inter alia, that “PAUL’s awareness of sexual abuse and molestation suffered by his sisters, and his attempt to resolve a family issue with Plaintiff’s son, does not make PAUL liable for any cause of action. Not for extortion, not for negligence/NEID, not for intentional infliction of emotional distress—Plaintiff is stringently arguing that it does.” (Reply at p. 7:9-12.) But the relevant inquiry on the instant motion is whether “the terms of Code of Civil Procedure section 474 have…been complied with…” ((Maier Brewing Co. v. Flora Crane Service, Inc., supra, 270 Cal.App.2d at p. 875.)