Judge: Theresa M. Traber, Case: 23STCV03186, Date: 2023-10-11 Tentative Ruling

Case Number: 23STCV03186    Hearing Date: October 11, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     October 11, 2023                   TRIAL DATE: NOT SET

CASE:                         Lenny K. Dykstra v. Galanter Associates, et al.

CASE NO.:                 23STCV03186           

MOTION TO QUASH SERVICE OF SUMMONS BY PUBLICATION

MOVING PARTY:               Specially Appearing Defendant Douglas F. Galanter, individually and d/b/a Galanter Associates

RESPONDING PARTY(S): Plaintiff Lenny K. Dykstra.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a legal malpractice action that was filed on February 14, 2023. Plaintiff alleges Defendant failed to provide adequate and competent legal services, failed to communicate with Plaintiff during the course of representation, and misappropriated funds which were to be held in an Interest on Lawyer’s Trust Account for the benefit of Plaintiff.

Specially Appearing Defendant moves to quash service of the summons and complaint by publication.

TENTATIVE RULING:

Specially Appearing Defendant Douglas Galanter, individually and doing business as Galanter Associates, moves to quash service of the summons and complaint by publication.

A motion to quash must be made as Defendant’s initial appearance in the action, and must be served and filed on or before the last day to plead “or within any further time that the court may for good cause allow.” (Code Civ. Proc.  § 418.10(a).) Filing the motion also extends the time within Defendant may answer or demur. (Code Civ. Proc.  § 418.10(b).) 

            Here, the Proof of Service by Publication filed with the Court on August 4, 2023 states that service by publication was commenced on July 13, 2023, with successive notices published on July 20, July 27, and August 3, 2023. (August 4, 2023 Proof of Service by Publication.) A party has 30 days to answer or demur to a complaint after service is received. (Code Civ. Proc. § 471.5.) Service by publication is deemed complete on the 29th day after publication commences. (Code Civ. Proc. § 415.50(c); Gov. Code § 6064.) 59 days after July 13, 2023 would be Sunday, September 10, 2023. Thus, the final date to file this motion was Monday, September 11, 2023. (Code Civ. Proc. § 12.)  Although Defendant’s motion was filed on September 8, 2023, the initial filing of this motion stated that it was served by email on Plaintiff, a self-represented litigant. (See Proof of Service in Motion to Quash filed September 8, 2023.) Under Code of Civil Procedure section 1010.6 subdivision (c), an unrepresented person in a civil action must give express consent to receive electronic service before such service is valid. (See Code Civ. Proc. § 1010.6(c)(1)-(2).) Express consent may be given by either:

(i) Serving a notice on all parties and filing the notice with the court [or;]

(ii) Manifesting affirmative consent through electronic means with the court or the court's electronic filing service provider, and concurrently providing the party's electronic address with that consent for the purpose of receiving electronic service. The act of electronic filing shall not be construed as express consent.

(Code Civ. Proc. § 1010.6(c)(3).) No manifestation of affirmative consent by Plaintiff as provided by statute is present in the Court’s record. Although Defendant subsequently filed a proof of service stating that the motion was served by U.S. mail on September 13, 2023, that subsequent service was made after the time to plead had expired. (See Proof of Service filed September 29, 2023.) Defendant offers no explanation for the failure to timely serve this motion, nor any other basis for the Court to find good cause to extend the time for filing and service of this motion. Defendant’s Motion to Quash is untimely.

            Accordingly, Defendant Douglas Galanter’s Motion to Quash Service of the Summons and Complaint by Publication is DENIED.

            Defendant is deemed to have made a general appearance in this action.

            Defendant is ordered to file and serve an answer, demurrer, or other responsive pleading within 20 days of this order.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated: October 11, 2023                                 ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.