Judge Theresa M. Traber, Case Number: 23STCV14830, Date: 2024-01-11 Tentative Ruling

Judge: Theresa M. Traber, Case: 23STCV14830, Date: 2024-01-11 Tentative Ruling

Case Number: 23STCV14830 Hearing Date: January 11, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: January 11, 2024 TRIAL DATE: February 11, 2025

CASE: Michael Apalategui v. Ronald Roe, et al.

CASE NO.: 23STCV14830

MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY: Specially Appearing Defendant Ronald Roe

RESPONDING PARTY(S): Plaintiff Michael Apalategui

CASE HISTORY:

· 06/26/23: Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for workplace sexual harassment in violation of the Fair Employment and Housing Act. Plaintiff alleges that he was sexually harassed by his supervisor and that his employer failed to address the harassment.

Specially Appearing Defendant Ronald Roe, erroneously sued as Ronald Rode, moves to quash service of the summons and complaint for defective service.

TENTATIVE RULING:

Defendant Ronald Roe’s Motion to Quash Service of the Summons and Complaint is DENIED AS MOOT.

Defendant is deemed to have made a general appearance in the action as of this date. Defendant is ordered to file an answer, demurrer, or other responsive pleading within 30 days of this order.

DISCUSSION:

Specially Appearing Defendant Ronald Roe, erroneously sued as Ronald Rode, moves to quash service of the summons and complaint for defective service.

Special Appearance

No motion under Code of Civil Procedure 418.10 “shall be deemed a general appearance by the defendant.” (Code Civ. Proc. § 418.10(d).) Here, Specially Appearing Defendant (“Defendant”) brought this motion under section 418.10. Thus, filing this motion does not constitute a general appearance.

Legal Standard

On a motion to quash service of the summons and complaint, the moving party must first present some admissible evidence, such as declarations or affidavits, to place the issue of minimum contacts before the Court. (School Dist. of Oskaloosa County v. Superior Court (1997) 58 Cal.App.4th 1126, 1131.) “When a motion to quash is properly brought, the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 568; see also Elkman v. National States Ins. Co. (2009) 173 Cal.App.4th 1305, 1312-13 [“Where a nonresident defendant challenges jurisdiction by way of a motion to quash, the plaintiff bears the burden of establishing by a preponderance of the evidence that minimum contacts exist between the defendant and the forum state to justify imposition of personal jurisdiction.”].) Evidence of the facts giving rise to personal jurisdiction or their absence may be in the form of declarations. (Arensen v. Raymond Lee Organization, Inc. (1973) 31 Cal.App.3d 991, 995.) The Court should exclude evidence that would be inadmissible at trial. (See, e.g., Judd v. Superior Court (1976) 60 Cal.App.3d 38, 43-44 [Court of Appeal excluded inadmissible hearsay evidence offered in support of affirmation of trial court’s denial of motion to quash, and subsequently reversed the trial court’s denial].) A non-resident defendant may be subject to either general or specific jurisdiction. (See Elkman v. National States Insurance Co., supra, 173 Cal.App.4th at 1314.)

Analysis

Defendant Ronald Roe, erroneously sued as Ronald Rode, moves to quash service of the summons and complaint for defective service.

Code of Civil Procedure section 415.20 governs substituted service of the Summons and Complaint. This statute provides, as relevant here:

(a) In lieu of personal delivery of a copy of the summons and complaint to the person to be served [. . .], a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, [. . .], with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(b) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served [. . .], a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing [. . .], in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(Code Civ. Proc. § 415.20 (a)-(b) [emphasis added].) Ordinarily, “two or three attempts” at personal service will satisfy the requirement of reasonable diligence. (Bein v. Brechtel Jochim Grp. Inc. (1992) 6 Cal.App.4th 1387, 1391-92.)

After this motion was filed, Plaintiff filed a second proof of service on November 20, 2023 stating that Defendant had been served by substituted service at 1:20 PM that same day. (November 20, 2023 Proof of Substituted Service.) As this supplemental filing potentially moots the motion, the Court requested simultaneous supplemental briefing from the parties not to exceed five pages on the impact of that proof of service on this motion. (December 15, 2023 Minute Order.)

Plaintiff did not comply with the Court’s order. Plaintiff’s supplemental brief entirely fails to address the impact of the new proof of service on this motion and instead attempts to litigate the validity of the initial proof of service. The Court did not request supplemental briefing on that issue. Moreover, Plaintiff offers no justification for his failure to timely oppose the motion beyond an unsupported—and wholly insufficient—assertion of an unspecified “administrative error.” The Court therefore refuses to consider Plaintiff’s supplemental brief.

Defendant’s supplemental brief, which complies with the Court’s order, argues that the November 20 proof of service is defective, and therefore has no impact on this motion. Defendant first argues that the proof of service is defective because Plaintiff did not serve the Complaint on this Defendant within the time required by California Rule of Court 3.110(b). Defendant cites no authority standing for the proposition that a failure to comply with timeframe for serving the complaint under the Rules of Court warrants the quashing of an otherwise proper service of summons and complaint, and the Rules of Court do not themselves contemplate such a remedy. (See Cal. Rules of Court rule 3.110(f) [Court may issue order to show cause why sanctions should not be imposed for failure to timely serve pursuant to rule].)

Defendant also asserts that the November 20 proof of service is defective because it does not demonstrate diligence in attempting proper personal service on Defendant. The November 20, 2023 proof of service states that service was attempted three times at the address of International Paper Company, Defendant Roe’s employer and his place of business, at 19614 S. Susana Road in Compton, California. (November 20 POS ¶¶ 4, 5b.) The attached declaration states that service was attempted three times: first, on November 8, 2023 at 2:10 PM, where an individual named “Tex” stated that Defendant was not in at that time; a second time on November 9 at 10:15 AM, where another unidentified employee said the same; and a third time on November 10, 2023 at 4:50 PM where an individual named “Norma” also said the same. (POS Declaration of Diligence.) The process server then left the documents with an Office Clerk named Kathy on November 17, 2023 at 1:20 PM. (Id.)

Defendant contends that this record is inadequate to establish reasonable diligence because IPC is not authorized to accept service on his behalf, and because the proof of service lacks sufficient detail. Defendant cites no binding authority supporting his position. The limited persuasive authority that Defendant does cite only establishes that there must be some factual showing that the person to be served works at that location and that the person who is accepting service also is employed there, such that it is more likely than not that they will deliver process to the named party. (Block v. Any Merced Inc. (E.D. Cal.) 2022 WL 43695 *2; Joe Hand Promotions Inc. v. Saddeldin (E.D. Cal.) 2014 WL 1877428 *6; see also Bein, supra, 6 Cal.App.4th at 1392.) In Block, the proof of service provided no information on the person who accepted the documents. (Block, supra at *2), whereas there was no showing in Saddeldin that the party to be served actually worked at the place where service was attempted. (Saddeldin, supra, at *7). Here, however, there is no contention that Defendant does not work at IPC, and the proof of service offers sufficient identification of the person who accepted service to support the conclusion that it was more likely than not that Defendant would receive the documents. As to Defendant’s argument that IPC is not authorized to accept service on his behalf, this argument is irrelevant. Nothing in Code of Civil Procedure section 415.20 requires that the person at Defendant’s workplace who receives the summons be “authorized to accept service,” only that the person be apparently in charge of the office, over 18 years of age, and informed of the contents of the summons and complaint. (Code Civ. Proc. § 415.20(b).) Defendant thus fails to offer evidence that would tend to put the new proof of service at issue such that it would not suffice to moot the September 21 proof of service.

The Court finds that the valid November 20, 2023 proof of substituted service moots the proof of service originally challenged in this motion. Thus, by operation of law, Defendant is deemed to have made a general appearance in the action as of the date of this order. (See Code Civ. Proc. § 418.10(b).) However, in light of the overlapping proofs of service and the consequential delay imposed on the Court’s ruling, the Court finds good cause to extend Defendant an additional 15 days, for a total of 30 days to prepare a demurrer, answer, or other responsive pleading. (Code Civ. Proc. § 418.10(b).)

CONCLUSION:

Accordingly, Defendant Ronald Roe’s Motion to Quash Service of the Summons and Complaint is DENIED AS MOOT.

Defendant is deemed to have made a general appearance in the action as of this date. Defendant is ordered to file an answer, demurrer, or other responsive pleading within 30 days of this order.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: January 10, 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.