Judge William A. Crowfoot, Case Number: 23AHCV01590, Date: 2023-09-13 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV01590, Date: 2023-09-13 Tentative Ruling

Specially appearing defendant Zhenyu Qi (“Defendant”) moves for an order to quash service of summons and complaint. Plaintiff Evelyn D. Childress (“Plaintiff”) filed a proof of service of summons on November 1, 2023, in which a registered process server declared that Defendant’s attorney, Eric Khaodadian, was personally served on Defendant’s behalf. Mr. Khaodadian submits a declaration stating that on October 17, 2023, a process server attempted to serve him with the summons and complaint, but he specifically told the process server that he was not authorized to accept those documents on his client’s behalf. (Motion, Khaodadian Decl., ¶ 3.) Mr. Khaodadian refused to accept service and the process server left his office. (Id., ¶ 4.)

When a defendant moves to quash service of summons, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) Here, on December 29, 2023, Plaintiff filed an opposition brief stating she has made several unsuccessful attempts to serve Defendant and requests the Court deny the motion because she is still attempting service. She states that there was a miscommunication and she mistakenly relied on her process server, who informed her that defense counsel was a proper agent for service of process.

In light of Plaintiff’s admission that there was a mistake, the motion to quash is GRANTED.

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

William A. Crowfoot

Judge of the Superior Court

On July 12, 2023, plaintiff Evelyn D. Childress filed this action naming Zhenyu Qi, State Farm, and Garden View Landscaping as defendants. Plaintiff alleges that on August 14, 2021, she fell and sustained injuries when her right foot became “tangled in the spider like plant that pertruded [sic] onto the sidewalk.” (Compl., p. 2.)

On September 1, 2023, the clerk received and filed Plaintiff’s operative First Amended Complaint (“FAC”). The amended complaint adds “The Villas on Third Homeowners Association” as a defendant.

On October 6, 2023, The Villas on Third HOA (“Defendant”) (erroneously named as “The Villas on Third Homeowners Association”) filed this demurrer to the FAC arguing that Plaintiff’s action is barred by the statute of limitations.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Based on the two-year statute of limitations period set forth in Code of Civil Procedure section 335.1, Plaintiff’s personal injury action had to be filed by August 14, 2023. Because the FAC naming Defendant was not filed until September 1, 2023, Defendant argues that the pleading is untimely. Defendant further argues that the FAC does not “relate back” under Code of Civil Procedure section 474 because Plaintiff did not name any fictitious Doe defendants in her original Complaint and therefore could not have substituted Defendant as a Doe.

On October 27, 2023, Plaintiff filed an opposition brief. Plaintiff refers to an “amended complaint” filed on August 14, 2023, which was denied on September 5, 2023. Plaintiff asserts, without evidence, that the complaint had been received by the clerk “but not immediately filed.” Plaintiff also states that she later learned that the clerk, O. Rodriguez, “was off for several days but [her] complaint remained in his desk , [sic] according to clerk Ms. Jenny in the pasadena court office.” Plaintiff claims that “[w]hen Mr. Rodriguez, [sic] returned to the office, he requested a second copy of the Amended Complaint, by via email, because he had lost the first one [sic] The second copy was sent on August 21, 2023. Exhibit #1 and #2[.]”

Plaintiff includes with her opposition brief a document file-stamped August 14, 2023, and entitled “Amendment.” The document has a gray square on the caption page with a stamp that says, “Received Superior Court of California County of Los Angeles” and “Northeast District Pasadena Courthouse.” The document is on pleading paper and the footer has handwriting that is cut off; only the word “Exhibit” is legible, suggesting that Plaintiff intends this document to serve as an exhibit supporting her opposition. The caption on the exhibit’s first page states that the document is an “Amendment” and lists “Laura Hoot and Ricky Leahy of The Villas on Third Homeowners Association” as defendants. The document also includes a “preliminary statement” and 2 pages of allegations of the incident. Notably, there are no allegations of wrongdoing by The Villas on Third Homeowners Association. Instead, on the last page of the document titled “AMENDMENT”, Plaintiff states that Laura Hoot is the registered agent on file for the Villas on Third Homeowner Association and Ricky Leahy is the president of the same. Plaintiff also refers to a “proof of mailing letter” that was sent to an unnamed defendant on August 14, 2023, an email sent to another unnamed defendant on August 13, 2023, and a letter sent to “Mr. Byron Yoshida”, identified as the secretary of the Villas of Third Homeowners Association, on July 5, 2023.

The Court independently notes that its record shows that on August 14, 2023, Plaintiff attempted to file an “amendment.” Like the above-described exhibit included with Plaintiff’s opposition brief, this filed document lists Laura Hoot and Rickey Leahy “of The Villas on Third Homeowners Association” on the caption page and includes a copy of the last page in Plaintiff’s exhibit which describes Laura Hoot, Ricky Leahy, and Byron Yoshida as officers of The Villas on Third Homeowners Association. However, the filed document differs from Plaintiff’s exhibit because it is not on pleading paper and does not include the gray square with the file-stamped date or the two pages of allegations. The Court’s record further shows that on August 14, 2023, the clerk, “O. Rodriguez” sent a notice of rejection which informed Plaintiff that her “amendment” could not be processed because the “Amended Complaint does not specify what parites [sic] are being corrected or identified.”

Plaintiff submits no evidence – and the Court’s record is devoid of any – showing that Defendant was named in this action before the statute of limitations period expired. Even if the clerk accepted the document that Plaintiff claims she presented on August 14, 2023, that amendment does not name Defendant as a party, but identifies “Laura Hoot and Ricky Leahy of The Villas on Third Homeowners Association.”

The operative FAC, filed on September 1, 2023, is the first document on file that properly names Defendant as a party. Unlike the rejected amendment and Plaintiff’s exhibit, it (1) excludes any mention of Laura Hoot, Ricky Leahy, or Bryan Yoshida, and (2) contains an additional page of allegations that includes Plaintiff’s prayer for relief. Also, although Plaintiff submits copies of letters she supposedly sent to Laura Hoot, Ricky Leahy, and Bryan Yoshida, these letters are not a substitute for the act of filing a complaint. Instead, a civil action is “commenced” for statute of limitations purposes against persons named in the complaint only upon filing of the complaint. (Code Civ. Proc. § 350.)

In light of the foregoing, Defendant’s demurrer is SUSTAINED without leave to amend.

William A. Crowfoot

Judge of the Superior Court