Judge: Thomas S. Mcconville, Case: 2022-01281968, Date: 2023-08-21 Tentative Ruling

Ex Parte Application to Dismiss:

Defendants Collect Co, John Adams, Ali Ammar, Andrew Phan and David Wall’s ex parte application for order dismissing action with prejudice is DENIED. 

A court will not grant ex parte relief in any but the plainest and most certain of cases.  People ex rel. Allstate Ins. Co. v. Suh (2019) 37 Cal.App.5th 253, 257 (citation and quotation omitted).  Substantively, an applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or other statutory basis for granting relief ex parte.  Newsom v. Superior Court (2020) 51 Cal.App.5th 1093, 1097 (citing Cal. R. Ct. 3.1202(c)).  A trial court should deny an ex parte application absent the requisite showing.  Newsom, 51 Cal.App.5th at 1097. 

None of the declarations filed in support of defendants’ ex parte application establish irreparable harm, immediate danger, or other statutory basis for granting relief ex parte.  Defendants contend they are entitled to dismiss this action because they now own plaintiffs’ claims in this action.  This appears to be the equivalent of arguing that plaintiffs lack standing to bring this action.  (CCP 367 [“Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute”].)  However, defendants cite no authority allowing the purported real party in interest to seek dismissal via an ex parte request. 

While defendants’ supplemental brief (ROA 191) cites several statutes as to the propriety of its purchase at the Sheriff’s sale [p. 6], the only statute cited by defendants authorizing dismissal is CCP 581(c), which states: “A plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial.”  However, defendants cite no authority that the court may dismiss an action pursuant to an ex parte application by a party claiming it is the de facto plaintiff. 

This denial is without prejudice to defendants filing and serving a motion on regular notice and scheduling it for hearing on the court’s law and motion calendar.

Both parties’ requests for judicial notice are DENIED.  Whether plaintiffs are subject to a vexatious litigant prefiling order entered after this action was filed is irrelevant to the instant motion.  (ROA 236, 240; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295 [court is not required to take judicial notice of irrelevant documents].)  As to plaintiffs’ second request for judicial notice (ROA 243), these documents are also irrelevant to the instant motion.  (Soukup v. Law Offices of Herbert Hafif, supra at 295.)  Further, the partial portion of the Sheriff’s report (Ex. 1) is not properly subject to judicial notice under any provision of Evid. Code, § 452.  (See People v. Jones (1997) 15 Cal.4th 431A, 172, fn. 17 [“we decline to take judicial notice of the truth or accuracy of an entry in a police report, because such a report is reasonably subject to dispute”]; disapproved on different grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) 

Defendants shall give notice.

Motion to Quash Service of Summons:

Specially appearing defendants Collect Co, John Adams, Ali Ammar, Andrew Phan, and David Wall’s motion to quash service of summons is GRANTED as to defendants Collect Co, John Adams, Ali Ammar, and David Wall, and CONTINUED as to defendant Phan.  (Code Civ. Proc., § 418.10, subd. (a) [authorizing motion]; Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439 [proper service of summons is required for the court to obtain jurisdiction over a defendant]; Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710 [plaintiffs have burden of proof to demonstrate jurisdiction is proper].) 

The Court orders that service of summons is quashed as to defendants Collect Co, John Adams, Ali Ammar, and David Wall.

On its own motion, the court takes judicial notice of the following proofs of service filed in this action: ROA 13, 14, 15, 16, 17, 146, 147, 148, 156, 157, 158, 171, 172, 183.  (Evid. Code, § 452, subd. (d) [court records].) 

Defendant Collect Co.

As to defendant Collect Co., plaintiffs’ original proof of service indicates it was served on 9-29-22 via substitute service to Aileen De Los Santos, “office staff,” at 340 S. Lemon Ave., # 8771, Walnut, California 91789.  (ROA 13; Wall / Collect Co Decl. in support of motion, ¶ 5 and Ex. B thereto.)  Collect Co’s evidence shows that its business address is 340 S. Lemon Ave., #1455, Walnut, California 91789, not #8771 as indicated on the original proof of service; that its agent for service of process is John Adams, not Aileen De Los Santos; and that Ms. De Los Santos is not employed by Collect Co, nor a director, officer, or managing agent of Collect Co.  (Wall / Collect Co Decl., ¶¶  3, 4, 6; Ex. A thereto [corporate statement of information].)  Collect Co’s evidence thus negates the propriety of service under Code Civ. Proc., §§ 415.20, subd. (a), and/or 416.10.

On 4-21-23, plaintiffs filed an Amended Proof of Service as to Collect Co, indicating service on 4-19-23 to “Kathrin Lous” at “700 S Flower Street, Suite 1000, Los An[g]eles, CA 90017, CARR WORKPLACES AGENT FOR SERVICE.”  (ROA 171.)  However, as noted above, Collect Co’s evidence shows that its address and agent for service of process are different.

While plaintiffs contend that Collect Co has some agreement for service of process at the addresses reflected on the proofs of service, plaintiffs provide no evidence of this, as is their burden.  (Mihlon v. Superior Court, supra at 710 [plaintiffs’ burden on motion to quash]; see also Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4^th 573, 577-578 [statements in briefs are argument, not evidence].)

Defendants John Adams, Ali Ammar, and David Wall.

As to these individual defendants, plaintiffs’ original proofs of service all indicate they were served on 9-29-22 via substitute service to Aileen De Los Santos, “office staff,” at 340 S. Lemon Ave., # 8771, Walnut, California 91789.  (ROA 14, 15, 17; Adams Decl. in support of motion, ¶¶ 3 and 4, and Ex. A thereto; Ammar Decl. in support of motion, ¶¶ 3 and 4, and Ex. A thereto; Wall Decl. in support of motion, ¶¶ 4 and 5, and Ex. A thereto; see also ROA 14, 15, 17.)

Defendants’ evidence shows that the address of service is not their residence or usual place of business.  (Code Civ. Proc., § 415.20, subd. (b) [governing substituted service]; Adams Decl., ¶ 5; Ammar Decl., ¶ 5; Wall Decl., ¶ 5.)  Further, the original proofs of service do not include any evidence that the process server exercised reasonable diligence to personally serve the individual defendants before resorting to substitute service.  “Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ‘reasonable diligence.’”  (Rodriguez v. Cho (2015) 236 Cal. App. 4th 742, 750.)

The Amended Proofs of Service filed as to these defendants (ROA 146, 147, 157, 158, 172), do include a declaration of reasonable diligence.  However, that declaration only identifies the substitute service identified in the Amended Proofs of Service, not any prior attempts.  There is no evidence that the process server exercised reasonable diligence to personally serve these individual defendants before resorting to substitute service.  (Rodriguez v. Cho, supra at 750.)

Defendant Phan.

As to this defendant, plaintiffs’ original proof of service also indicates he was served on 9-29-22 via substitute service to Aileen De Los Santos, “office staff,” at 340 S. Lemon Ave., # 8771, Walnut, California 91789.  (ROA 16; Phan Decl. in support of motion, ¶¶ 4 and 5, and Ex. A thereto.)  This original proof of service is defective for the same reasons, in that Phan avers that this is not his residence or place of business (Phan Decl. in support of motion, ¶ 6), and there is no evidence of any prior attempts at service (Rodriguez v. Cho, supra at 750).

Plaintiffs also filed two Amended Proofs of Service as to defendant Phan, stating he was served on 12-27-22 via substitute service to “Sophak Ok, Office Mate” at 9741 Bolsa Ave., Ste. 217, Westminster, CA 92683 (ROA 148, 156).  However, the declaration of due diligence as to the first Amended Proof of Service (ROA 148) does not reflect any prior attempts at that address; the second (ROA 156) does not include a declaration of due diligence at all.

However, plaintiffs filed a third Amended Proof of Service as to defendant Phan on 5-10-23.  (ROA 183.)  The parties have not addressed the sufficiency of this Amended Proof of Service, and the hearing as to defendant Phan is continued for this reason.  Defendant Phan may file and serve supplemental briefing on or before September 8, 2023, addressing whether the service reflected in ROA 183 is proper.  Plaintiffs may file and serve supplemental briefing on or before September 26, 2023, limited to addressing the points made in defendant Phan’s supplemental brief.  Supplemental briefs are limited to five pages, exclusive of declarations or exhibits.  No further briefing is authorized.

The hearing on specially appearing defendant Phan’s motion to quash is continued to October 9, 2023 at 2:00 p.m. in C28.

Moving defendants shall give notice.