Judge Timothy B. Taylor, Case 37-2022-00047011-CU-PO-CTL 2023-08-04 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2022-00047011-CU-PO-CTL, Date: 2023-08-04 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 03, 2023

08/04/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited PI/PD/WD - Other Motion to Quash (Civil) 37-2022-00047011-CU-PO-CTL VELASCO VS PREMIER NUTRA PHARMA INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Quash Service of Summons, 04/13/2023

Tentative Ruling on Motion to Quash Service of Summons (Sky Softgel -Korea); OSC Regarding Transfer to Vista Branch Velasco v. Premier Nutra Pharma, Case No. 2022-47011 August 4, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is a personal injury case. In the complaint filed November 21, 2022, plaintiff alleges she suffered 'permanently disabling injuries' when 'her hand and arm were crushed and traumatically amputated by a Sky SV-3000 Soft Gel Encapsulation Machine designed, manufactured, sold, assembled, and installed by Sky Soft Co. Ltd.' This incident occurred in May of 2021 at 'Premier Nutra Pharma, Inc., in Carlsbad, California.' Plaintiff was working for Premier at the time, and has invoked the Labor Code section 4558 'power press' exception to the general rule of worker's compensation exclusivity. The claims against Sky Softgel are for product liability and negligence.

On January 3, 2023, the court granted plaintiff's unopposed ex parte application for leave to serve Sky Soft via the California Secretary of State. ROA 15-16. Service was effected a few weeks later. ROA 19.

Both defendants failed to timely file answers and their defaults were taken. ROA 17-18, 26-27. Premier subsequently stipulated to setting aside its default and has answered the complaint. ROA 20-21, 25.

Sky Softgel, however, seeks an order quashing service of the summons and complaint for failure to comply with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. ROA 28-32. Plaintiff filed opposition.* ROA 44-45. Sky Softgel filed reply. ROA 46-51. The court has reviewed the papers, and no further submissions are authorized in connection with this motion.

The case is also set for a continued CMC. ROA 39-41.

2. Applicable Standards.

A. The entry of default terminates a defendant's right to take any further affirmative steps in the litigation unless and until the default is set aside or a default judgment is entered. Devlin v. Kearney Mesa Calendar No.: Event ID: TENTATIVE RULINGS

2961802 59 CASE NUMBER: CASE TITLE: VELASCO VS PREMIER NUTRA PHARMA INC [IMAGED] 37-2022-00047011-CU-PO-CTL AMC/Jeep/Renault (1984) 155 Cal.App.3d 381, 385; People v. One 1986 Toyota Pickup (1995) 31 Cal.App.4th 254, 259.

B. 'A motion to quash service of summons permits a defendant to challenge personal jurisdiction where the summons is improper or the statutory requirements for service of process are not fulfilled.' Stancil v. Superior Court (2021) 11 Cal.5th 381, 402. '[O]nce a defendant files a motion to quash the burden is on the plaintiff to prove by a preponderance of the evidence the validity of the service and the court's jurisdiction over the defendant.' Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 991.

C. The Code of Civil Procedure specifies the various methods by which service of process may be effected. When a person is outside the United States, California's rules on service of process 'are subject to the provisions of the Convention on the 'Service Abroad of Judicial and Extrajudicial Documents' in Civil or Commercial Matters (Hague Service Convention).'' Code Civ. Proc. § 413.10(c).

'The Hague Service Convention is a multilateral treaty formulated in 1964 by the Tenth Session of the Hague Conference of Private International Law to revise parts of the previously-adopted Hague Service Conventions on Civil Procedure with respect to service of process abroad.' Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1064. 'Failure to comply with the Hague Service Convention procedures voids the service even though it was made in compliance with California law.' Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1136.

3. Discussion and Ruling.

The motion to quash service of summons for improper service is denied.

A. As an initial matter, the court rejects plaintiff's argument that the motion to quash is untimely.

Although Code of Civil Procedure section 418.10(a)(1) provides that a motion is due 'on or before the last day of his or her time to plead,' the statute also expressly permits the motion to be brought 'within any further time that the court may for good cause allow.' Here, Sky Softgel has submitted evidence showing that it was not aware of service of the summons and complaint until after the time to plead had expired. (Park Reply Decl., ¶ 2.) This is sufficient to establish good cause for purposes of section 418.10(a)(1).

B. The court also notes that Sky Softgel's notice of motion only asks the court to quash the service of summons; it does not seek an order setting aside the default. 'As a general rule, the trial court may consider only the grounds stated in the notice of motion.' Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125. However, '[a]n omission in the notice may be overlooked if the supporting papers make clear the grounds for the relief sought.' Id. Such is the case here. On page 4 of the memorandum of points and authorities, Sky Softgel argues that the default should be set aside.** Accordingly, the court construes the motion as a request to set aside the default and to quash service of summons. See Kapitanski v. Von's Grocery Co. (1983) 146 Cal.App.3d 29, 32 ('Rigid rule following is not always consistent with a court's function to see that justice is done.'); Fountain Valley Chateau Blanc Homeowner's Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 758 ('The law always favors substance over form[.]').

C. Turning to the merits, if a plaintiff serves a foreign defendant in California, the service is valid if it complies with California's service of process statutes governing service on foreign defendants.

Khachatryan v. Toyota Motor Sales, U.S.A., Inc. (C.D.Cal.2008) 578 F.Supp.2d 1224, 1228. However, if the foreign defendant cannot properly be served in California under the relevant California statutory provisions and service must occur abroad, then the service must comply with Hague Convention procedures if the defendant's country is a signatory. Code Civ. Proc. § 413.10(c); Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 700-08.

Here, plaintiff served Sky Softgel, a Korean corporation, via the California Secretary of State pursuant to the court's January 3, 2023 order. At the time of service, Sky Softgel had ceased doing business in California and surrendered its California registration. Corporations Code section 2114(b) authorizes Calendar No.: Event ID: TENTATIVE RULINGS

2961802 59 CASE NUMBER: CASE TITLE: VELASCO VS PREMIER NUTRA PHARMA INC [IMAGED] 37-2022-00047011-CU-PO-CTL service in such situations if the 'liability or obligation' was incurred prior to the surrender: 'A foreign corporation that has surrendered its right to transact intrastate business pursuant to Section 2112 or 2113 may be served with process in any action upon a liability or obligation incurred within this state prior to that surrender by delivery of the process to the Secretary of State, or an assistant or a deputy to the Secretary of State pursuant to this chapter and no court order authorizing this service shall be required.' (Emphasis added.) The complaint in this case alleges that the liability occurred in May 2021 – i.e., more than a year before Sky Softgel submitted its Certificate of Surrender. Thus, service on Sky Softgel was authorized under California's service of process statutes. It was therefore not necessary to resort to the Hague Service Convention. See Schlunk, 486 U.S. at pp. 700-708 (service on defendant German corporation via service on its subsidiary in Illinois was effective because service was authorized by Illinois law).

Sky Softgel argues that, as a foreign citizen, it can 'only' be served through the Hague. Not so. As noted above, section 413.10 contemplates that California's services rules are 'subject to' the provisions of the Hague Service Convention. The phrase 'subject to' does not mean 'pursuant to the rules of.' 'If the Legislature wanted all service on foreign nationals to be pursuant to the procedures of the Hague Service Convention, it could have said so.' Yamaha Motor Co., Ltd. v. Superior Court (2009) 174 Cal.App.4th 264, 271. It did not. As a result, the court must follow the 'cardinal rule that courts may not insert words or add provisions to a statute.' Campos v. Anderson (1997) 57 Cal.App.4th 784, 791.

Sky Softgel also contends that section 2114 is preempted by the Hague Service Convention but fails to cite a single case supporting its position. Nor has the court located any such authority. Absent such guidance from any California or federal appellate court, there is no basis to conclude that section 2114 is preempted.

Accordingly, the motion to quash is denied. This ruling is without prejudice to Sky Softgel filing a subsequent motion to set aside the default on different grounds, if applicable.

4. CMC/OSC.

In light of the allegation in paragraph 3 of the complaint that the incident occurred in Carlsbad, the parties are ordered to show cause, if any there be, why the case should not be transferred to the Vista Branch pursuant to Local Rule 1.2.2O.

_________________________ *Sky Soft argues that the opposition brief is untimely. It is not. 'All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days...before the hearing.' Code Civ. Proc. § 1005(b). In this case, the opposition was served filed and served on July 24, 2023 – i.e., nine court days before the hearing date. The fact that it was e-served is irrelevant.

'Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to...papers opposing a motion[.]' Code Civ. Proc. § 1005(b) (emphasis added).

**That section also references a concurrently filed motion to set aside default that does not appear in the ROA.

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