Judge Yolanda Orozco, Case 19STCV24213 2022-08-10 Tentative Ruling

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The present action arises from the alleged contamination of the real property located at 4297-4299 South Leimert Boulevard in Los Angeles, California (“Subject Property”). The Subject Property is owned by Plaintiffs Jerome Nash, as Trustee of the Jerome J. Nash Revocable Trust of 2001 dated May 21, 2001, Michael East, Tanisha Gonzalez, and Henry Ocasio (collectively, “Plaintiffs”). Plaintiffs allege that the Subject Property has been or was contaminated with Perchloroethylene (“PCE”), a hazardous substance. Plaintiffs allege the PCE contamination is attributable to the operation of a cleaning business, known as Flaire Cleaners, which is owned and operated by Bong Ik Lee and Chang Lee (“Defendants”), and was previously located upon the Subject Property. Plaintiffs alleges that, throughout the operation of Defendants’ business from as early as 1981, Defendants used, handled, and stored PCE upon the Subject Property.

On July 11, 2019, Plaintiffs initiated the present action by filing a Complaint against Defendants and Does 1 through 50. Plaintiffs’ Complaint alleges the following causes of action: (1) Continuing Nuisance; (2) Continuing Trespass; (3) Contribution; (4) Equitable Indemnity; (5) Contribution under HSAA § 25363; and (6) Declaratory Relief.

On May 3, 2022, Defendant Bong Ik Lee (hereinafter, “Defendant”) filed a Cross-Complaint asserting causes of action for (1) cost recovery under Hazardous Substances Account Act, (2) nuisance, (3) negligence, (4) contribution, (5) equitable indemnity, (6) declaratory relief against several parties.

Specially Appearing Real Party In Interest, The Hanover Insurance Company (“Hanover”) moves to quash the service of the Summons and Cross-Complaint on the grounds that the summons was defective. Hanover was not named as a Cross-Defendant to the Cross-Complaint or is otherwise a party to this action.

“One who is not named either by his true or a fictitious name or as an unknown defendant is not a proper party to an action, and service of summons upon such person upon proper motion should be quashed. (Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145.)

Code of Civil Procedure section 412.30 sets forth requirements of service for corporations. Section 412.30 provides:

“In an action against a corporation or an unincorporated association (including a partnership), the copy of the summons that is served shall contain a notice stating in substance: ‘To the person served: You are hereby served in the within action (or special proceeding) on behalf of (here state the name of the corporation or the unincorporated association) as a person upon whom a copy of the summons and of the complaint may be delivered to effect service on said party under the provisions of (here state appropriate provisions of Chapter 4 (commencing with Section 413.10) of the Code of Civil Procedure).’ If service is also made on such person as an individual, the notice shall also indicate that service is being made on such person as an individual as well as on behalf of the corporation or the unincorporated association.

If such notice does not appear on the copy of the summons served, no default may be taken against such corporation or unincorporated association or against such person individually, as the case may be.”

“The requirements of section 412.30 are mandatory, though those requirements may be satisfied by substantial compliance.” (Mannesmann DeMag, Ltd. v. Superior Court (1985) 172 Cal. App. 3d 1118, 1123 (citations omitted.)) The court in Mannesmann explained that when an entity’s name does not appear in the summons, and “there is no indication on the face of the summons that the person served was not being served in an individual capacity . . . the summons [is] so incomplete on its face as to render it ineffective to impart notice to its recipient and therefore the attempted service . . . d[oes] not satisfy the mandate of section 412.30.” (Id. at p. 1124.) The Mannesmann court also explained that “[n]otice of the litigation does not confer personal jurisdiction absent substantial compliance with the statutory requirements for service of summons.” (Id.)

As a preliminary matter, the Court finds that Defendant’s service of the Summons and the Cross-Complaint should be quashed because Hanover has not been named as a Cross-Defendant to the Cross-Complaint. In addition, Hanover has not been substituted in as a Doe by Defendant.

In addition, the Court finds that Defendant did not comply with the requirements of Code of Civil Procedure section 412.30, because he did not indicate on the Summons which type of individual or entity was being served, or whether the Summons and Complaint were being served on Hanover on behalf of other person(s). Accordingly, the Court finds that service of the Summons and Complaint is ineffective.[1]

Defendant failed to file an opposition and therefore did not present any facts or arguments to show that service on Hanover was proper.

Thus, Hanover’s Motion to Quash Service of Summon and the Cross-Complaint is GRANTED.

Hanover’s Motion to Quash Service of Summon and the Cross-Complaint is GRANTED.

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[1] The Court notes that Defendant filed a new Summons on August 5, 2022, but Defendant again fails to make any reference to Hanover, and fails to provide a proof of service that it was served on Hanover.