Judge: Teresa A. Beaudet, Case: 23STCV21234, Date: 2024-06-04 Tentative Ruling

Case Number: 23STCV21234    Hearing Date: June 4, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Ben Parker (“Plaintiff”) filed this action on September 1, 2023 against Defendants The Lobster LLC (“The Lobster”), Robert Kull, and Natasha Nathan.

Plaintiff filed the operative First Amended Complaint (“FAC”) on September 12, 2023, alleging causes of action for (1) discrimination on the basis of age, (2) harassment – hostile work environment, (3) retaliation, (4) failure to prevent discrimination, harassment and retaliation,

(5) retaliation, (6) wrongful termination in violation of public policy, (7) intentional interference with contract, and (8) negligent interference with prospective economic relations.

The Lobster now moves to compel arbitration “of the causes of action of the First Amended Complaint filed herein and to stay any further proceedings in this matter until any arbitration award is final.” On May 30, 2024, Plaintiff filed an “Objection to Motion to Compel Arbitration Based on Lack of Jurisdiction for Lack of Proper Service of Motion.” On May 30, 2024, The Lobster filed a Reply thereto. On May 31, 2024, Plaintiff filed a Proof of Personal Service as to Robert Kull showing that he was served with the Complaint and the FAC on October 24, 2023. On May 31, 2024, Plaintiff also filed a Motion to Quash Service of [the] Motion to Compel Arbitration Based on Lack of Jurisdiction for Lack of Proper Service of Motion set for hearing on November 18, 2024.

            Discussion

Procedural Issues

As noted above, on May 30, 2024, Plaintiff filed an “Objection to Motion to Compel Arbitration Based on Lack of Jurisdiction for Lack of Proper Service of Motion.” In the Objection, Plaintiff states that he “objects to the Defendant THE LOBSTER LLC.’s (‘Defendant’ or ‘Lobster’) filing of its November 17, 2023 Responsive Pleading in this case in the form of a Notice of Motion and Motion to Compel Arbitration and/or Stay Action Pending Arbitration (‘Motion’), on the ground that this Court lacks jurisdictional authority to adjudicate said Motion because Lobster’s service of the Motion on Plaintiff was defective and not in compliance with statutory law governing service of process.” (Plaintiff’s Objection at pp. 1:25-2:3.)

In the Objection, Plaintiff points out that the proof of service attached to The Lobster’s instant motion is signed by Robert F. Kull. The proof of service states that “I am a citizen of the United States and employed in Los Angeles County, California. I am over the age of eighteen years and not a party to the within-entitled action.” However, as set forth above, Robert Kull is a defendant named and served in the instant action.[1] Plaintiff asserts that “Lobster submitted a defective, invalid proof of service signed by a named party in a legal action, which voids the filing and/or warrants an order to strike/quash or an order taking hearing off calendar.” (Plaintiff’s Objection at p. 2:14-17.) Plaintiff cites to, inter alia, Caldwell v. Coppola (1990) 219 Cal.App.3d 859, 865 (Caldwell), where the Court of Appeal noted that “[a]lthough attorneys are competent to serve process, the prohibition on service by the opposing party is strictly enforced. When a party has served notice on the opposing party, the court lacks personal jurisdiction over the defendant.” (Internal citation omitted.)

            As an initial matter, in its reply filed on May 30, 2024, The Lobster states, inter alia, that “[i]n view of the Opposition being served less than three (3) court days before the hearing on the Motion and knowing that the Court will be working up this matter for hearing on Tuesday morning, June 4, 2024, The Lobster files this late Reply without time to fully consider and brief it.” (Reply at p. 3:22-25.) However, Plaintiff did not file an opposition. Pursuant to Code of Civil Procedure section 1005, subdivision (b), “[a]ll papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” In addition, “[a]ny period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days…” ((Id., § 1010.6, subd. (a)(3)(B).) As set forth above, Plaintiff’s Objection was filed on May 30, 2024, and the proof of service attached to the Objection indicates that it was served by email on May 30, 2024, three court days before the June 4, 2024 hearing on the instant motion. Thus, if Plaintiff’s Objection were treated as an opposition, it would be untimely filed and served.

            In the Objection, Plaintiff does not indicate the basis for filing an objection rather than an opposition to the instant motion. The Lobster asserts in its reply that “[t]he Objection is … without merit,” and that “Plaintiff waived its objection and is estopped to assert the same.” (Reply at p. 4:8; 6:11.) The Lobster does not squarely address the Calwell holding noted above; instead, The Lobster points out the differing circumstances in that case when compared to the circumstances in this case. The Lobster does not address the question of whether a party can waive or be estopped from asserting the jurisdictional defect of service by a party. Instead, in support of the waiver and estoppel arguments, The Lobster points to (a) emails indicating that Plaintiff agreed that Robert Kull need not appear in the action because he agreed to be bound by the ruling on the instant motion as to The Lobster, and (b) the failure to identify any jurisdictional issues or possible motions in Plaintiff’s Case Management Statement regarding any jurisdictional issues and possible motions. The Lobster does not explain how the agreement not to appear in the action until the Court rules on the instant motion makes Robert Kull not a party to the case or how it negates the rule in Caldwell that a party may not serve notice on another party. The Lobster also does not cite any statutory or case authority that describe the ramifications of failing to identify any jurisdictional issues or possible motions in a Case Management Statement.  

            In light of the foregoing circumstances, the Court will require further briefing on these issues. The Court will discuss a briefing schedule with the parties at the hearing.

The Lobster is ordered to provide notice of this Order.

DATED:  June 4, 2024                                  

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court