Judge: Yolanda Orozco, Case: 21STCV22340, Date: 2022-09-13 Tentative Ruling

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Case Number: 21STCV22340    Hearing Date: September 13, 2022    Dept: 31

MOTION TO QUASH SERVICE OF SUMMONS IS DENIED 

Background 

On June 15, 2021, Plaintiff filed the instant action against Defendants Alameda Restaurant LLC; Noypitz Bar & Grill LLC; Lauro Calonzo; Wokcano Cerritos, LLC and Does 4 to 50.

Plaintiff worked as a waiter and server for Defendants prior to bringing this action for wrongful termination. 

On September 21, 2021, Defendant Lauro Calonzo, by Special Appearance, filed a Motion to Quash Service of Summons and Complaint. The Motion was granted on February 03, 2022. (Min. Or. 02/03/22.)

On February 14, 2022, Defendants Lauro Calonzo dba Wokcano Cerritos LLC, Lauro Calonzo, dba Noypitz Bar & Grill LLC, and Lauro Calonzo dba Alameda Restaurant LLC were dismissed as defendants. 

On May 10, 2022, Plaintiff filed a new Proof of Personal Service of Summons on Defendants Alameda Restaurant LLC, Lauro Calonzo, Noypitz Bar & Grill LLC, and Wokcano Cerritos, LLC. 

On July 28, 2022, Plaintiff filed a First Amended Complaint (FAC) alleging causes of action for: 

1)     Failure to provide meal breaks;

2)     Failure to provide rest breaks;

3)     Failure to pay wages;

4)     Failure to pay overtime;

5)     Failure to provide accurate itemized wage statements;

6)     Violation of Business and Professions Code § 17200-17208; and

7)     Wrongful termination in violation of public policy.

On August 15, 2022, Plaintiff filed Proof of Substitute Service of Summons of FAC on Defendants. 

On August 18, 2022, Defendant Lauro Calonzo filed a Motion to Quash Service of Summons and Complaint or Dismiss Entire Action for Lack of Service or Defective Service of Process. 

No Opposition or Reply has been filed. 

Discussion

The Court is concerned that the Motion to Quash was not properly served. Defendant Calonzo submitted the Declaration of Tony Geluz to establish that the Motion was properly served by mail pursuant to Code of Civil Procedure section 1013a. However, the Proof of Service is defective because the address listed does not also list the suite number for Plaintiff’s counsel. 

In addition, the Geluz declaration does not state that “the envelope was sealed and deposited in the mail with the postage thereon fully prepaid” as required by the Code. (Code Civ. Proc., § 1013a subd. (1).) 

For the reasons stated the Motion is DENIED.   

Conclusion 

The Motion to Quash is DENIED without prejudice. Defendant may refile the Motion accompanied by a proper Proof of Service evidencing that the moving papers were properly served.  

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking protocols will be observed at the Courthouse and in the courtrooms.