Judge Thomas Falls, Case 19STCV10467 2022-08-17 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Dept. R at 909-802-1117 before 8:30 the morning of the hearing.

SPECIALLY APPEARING DEFENDANT MARTIN ANDALUZ ABARCA’S (“ABARCA”) MOTION TO QUASH PURPORTED SERVICE OF SUMMONS AND COMPLAINT BY PUBLICATION FOR LACK OF PERSONAL JURISDICTION

Responding Party: Plaintiffs, Jaime Valenzuela, individually, and as successor in interest to Irving Valenzuela, deceased, and Tammy Martinez, individually, and as successor in interest to Irving Valenzuela, deceased

SPECIALLY APPEARING DEFENDANT MARTIN ANDALUZ ABARCA’S (“ABARCA”) MOTION TO QUASH PURPORTED SERVICE OF SUMMONS AND COMPLAINT BY PUBLICATION FOR LACK OF PERSONAL JURISDICTION is GRANTED.

On May 24, 2019, R&R Auto Group, Inc. (erroneously named and served as R&R Auto Group and also erroneously named as Ranes & Ranes) (“R&R”) filed a cross-complaint, asserting causes of action against Roes 1-100 for:

On June 14, 2019, this action was transferred from the personal injury hub (Department 5) to this department. On July 8, 2019, Enterprise was dismissed without prejudice, pursuant to stipulation/order.

On September 11, 2019, Access filed a First Amended Cross-Complaint (“FACC”), asserting causes of action against Plaintiffs Jaime Valenzuela and Tammy Martinez, individually and as successors in interest to Irving Valenzuela, deceased, (“Plaintiffs”), Defendants Martin Andaluz Abarca; Erick’s Transportation, Inc.; Humberto Mazariegos; Valeria Gersch, individually and as Trustee of the Gersch Family Trust, Joseph L. Gersch Family Revocable Trust, Joseph L. Gersch Sole and Separate Property Trust and Gersch Marital Trust; Joseph L. Gersch, individually and as Trustee of the Gersch Family Trust, Joseph L. Gersch Family Revocable Trust, Joseph K. Gersch Sole and Separate Property Trust and Gersch Marital Trust; U-Haul; Najib Abdelrahman; Ahmad Abdelraham dba Access Storage (erroneously named and served as Access Storage) (“Access”); H-Mart; CH Robinson Transportation Company, Inc., CH Robinson Company, Inc.; CH Robinson; CH Robinson Worldwide; C.H. Robinson Company; C.H. Robinson Operating Company LLC; C.H. Robinson Receivables, LLC; C.H. Robinson Transportation Company, Inc.; C.H. Robinson Worldwide, Inc.; C.H. Robinson Company Inc.; C.H. Robinson International, Inc.; C.H. Robinson Project Logistics, Inc.; C.H. Robinson Freight Services, Ltd.; C.H. Robinson Carrier Services; Robinson Fresh; Robinson Fresh LA Service Center; Robinson Fresh West, Inc.; Chelean Fruit; Chilean Fresh Marketing; Chelan Fresh Marketing; Chelan Fruit Beebe; Chiawana, Inc. dba Columbia Reach Pack (erroneously sued as Columbia Reach and Columbia Reach Pack) (“Chiawana”); Trout-Blue Chelan-Magi; Oneonta Trading Corporation (erroneously sued as Oneta Trading Corporation) (“Oneonta”); Foodsource, Inc.; Utility Trailer Manufacturing Company (also erroneously sued as Utility Trailer Sales of Utah, Inc., Utility Trailer Sales of Central California and Utility Trailer) (“Utility”); Kalmar Terminal Tractors of Utah; American Honda Motor Co., Inc.; Honda R&D Americas, Inc.; Honda North America, Inc.; Honda of America Mfg., Inc., Honda Motor Co., Ltd.; Honda R&D Co., Ltd.; Stockton Honda; Corona Automotive Company, LLC dba Honda Cars of Corona (erroneously sued as “Honda Cars of Corona”) (“Honda Corona”); R&R; Enterprise Rent A Car Company of Los Angeles dba Enterprise Car Sales (sued as “Enterprise Car Sales”) (“Enterprise”) (collectively, “Defendants”) and Roes 1-500 for:

On July 23, 2019, Honda Corona was dismissed without prejudice, pursuant to stipulation/order.

On September 24, 2019, Plaintiffs filed a First Amended Complaint (“FAC”), asserting causes of action against Defendants and Does 1-500 for:

On October 28, 2019, Plaintiffs filed three “Amendment[s] to Complaint,” wherein Grand Supercenter Inc. was named in lieu of Doe 301, Grand Super Center, Inc. was named in lieu of Doe 302 and H Mart—Grand Super Center, Inc. was named in lieu of Doe 303.

On October 29, 2019, Oneonta filed a cross-complaint, asserting causes of action against Access and Roes 1-150 for:

On October 31, 2019, Chiawana filed a cross-complaint, asserting causes of action against Access and Roes 1-150 for:

On November 8, 2019, Access dismissed Honda Corona, without prejudice. On November 18, 2019, Plaintiff filed an “Amendment to Complaint,” wherein Custom Apple Packers, Inc. was named in lieu of Doe 304. On November 21, 2019, Access dismissed Plaintiffs, without prejudice.

On February 11, 2022, the court GRANTED Honda Motor Co., Ltd’s (“HMC”) and Honda R&D Co., Ltd.’s (“HRD”) (collectively, “Specially Appearing Moving Defendants”) Motion to Quash Service of Summons on First Amended Complaint.

On April 5, 2022, Specially Appearing Moving Defendants filed a Motion to Quash, which the court granted.

On August 10, 2022, Specially Appearing Moving Defendant ANDALUZ filed its Reply.

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (CCP § 418.10(a).) “ ‘[P]ersonal jurisdiction relates to the power to bind a particular party, and depends on the party's presence, contacts, or other conduct within the forum state.’” (Shisler v. Sanfer Sports Cars, Inc. (2008) 167 Cal.App.4th 1, 6-7, quoting Donaldson v. National Marine, Inc. (2005) 35 Cal.4th 603, 512.)

“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4^th 1426) (emphasis added).

Abarca, a Mexican national, brings forth the instant motion on the grounds that the manner of the purported service by publication is ineffective because the “Application for Publication as well as the publication itself are a sham.” (Motion p. 6.) More specifically, Abarca argues that Plaintiff failed to comply with the convention on service abroad of Judicial and Extra Judicial Documents (Hague Service Convention)[1] because Plaintiffs’ investigator made no effort to locate Abarca in Tijuana, Mexico even though Plaintiffs’ investigator knew that Abarca moved to Tijuana. (Motion p. 13.) Moreover, as the investigator’s efforts were limited to not only the city of Murrieta but also the county of San Diego, Plaintiffs’ purported service by publication on the Press Enterprise, a newspaper of circulation in the Inland Empire, is void. Thus, Plaintiffs’ purported publication of the summons on the Press Enterprises does meet the minimal constitutional requirements of due process and the subject summons should be quashed.

In Opposition, Plaintiffs advance a host of arguments such that (i) it was served late, (ii) it was improperly set late, and (iii) it was filed by a lawyer and firm that do not show they have authority to do anything for Abarca.[2] Additionally, Plaintiffs aver that compliance with the Hague Convention is not required. (Opp. p. 1.)

Here, however, Plaintiffs’ reliance on service by publication pursuant to California law is fatal because if a defendant is outside the United States, special requirements apply to ensure satisfaction of due process and statutory requirements. As such, the Hague Convention’s service requirements are mandatory by virtue of the preemptive effect of treaties. (See Kott v. Superior Ct. (1996) 45 Cal.App.4th 1126, 1133.) To the extent that Plaintiffs argue that the Hague Convention does not apply because the cases do not involve efforts to quash service by publication upon an individual with an address that is completely unknown, that argument is both an inaccurate representation of the holding in Kott and disingenuous to the facts of this case.

In Kott, the plaintiffs filed an application for publication of summons claiming the defendant’s address was unknown. In support of this assertion, the plaintiffs relied on their investigator's efforts in locate the defendant in California, however, it was later learned that the defendant was a resident and citizen of Canada. Based on this new information, the court stated that the plaintiff’s “continu[al] [] claim that [the defendant’s] address was ‘unknown’” was meritless because the plaintiffs “chose to ignore obvious avenues for obtaining the information.” (Kott, supra, 45 Cal.App. 4th at p. 1138.) Similarly here, defense counsel discussed multiple times with Plaintiffs’ counsel that Abarca is believed to be in Mexico. In fact, Plaintiffs’ counsel acknowledged this fact in an email to Defense Counsel dated October 22, 2019 that states:

I understand that after killing my clients’ son, your client fled to Mexico. Can you please tell me where he is so we can serve him via The Hague since you and the carrier will not accept service?

Therefore, in light of facts known at the time, notably that Plaintiffs were aware that Abarca resides in Mexico, Plaintiffs’ publication of a summons in the Press Enterprise amounts to ineffective service as it failed to comply with the Hague Convention.

[1] The Hague Convention is an international treaty governing service of judicial and extrajudicial documents in civil and commercial matters on citizens of the signatory States. Both the United States and Mexico are signatories to the Hague Service Convention. (In re Alyssa F. (2003) 112 Cal.App.4th 846, 852 (Alyssa F.).) “The Hague Service Convention was ‘intended to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad.’” (Id.)

[2] These arguments are without merit. First, as to Plaintiffs’ argument that the motion was not timely served, Plaintiffs provide a conclusory statement without an analysis. Even if the motion was untimely served, there is a judicial preference to hear matters on their merits. Second, as to Plaintiffs’ argument that a hearing date was not timely reserved, the court’s reservation system is heavily impacted. In fact, parties in almost all cases are unable to reserve timely dates. Moreover, Plaintiff’s reliance on California Rules of Court Rule 3.1300 to support its contention that that Abarca was to file an ex-parte is inaccurate as Rule 3.1300 provides no such requirement. Third, as to Plaintiffs’ argument Lewis Brisbois lacks standing to make this motion on behalf of Abarca because there is no evidence that Abarca retained the firm is also inaccurate. As the Reply states, Lewis Brisbois represented Abarca back in 2019 when he first specially appeared by filing his first motion to quash. Thus, to the extent that Plaintiffs argue that any attempt to remedy this would be “highly prejudicial” is disingenuous as Plaintiffs very well knew Lewis Brisbois represented Abarca since 2019, as evidenced by emails to the firm. (Reply p. 2, citing Sarmiento Declaration.)