Judge: Yolanda Orozco, Case: 21STCV37047, Date: 2023-02-08 Tentative Ruling
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Case Number: 21STCV37047 Hearing Date: February 8, 2023 Dept: 31
MOTION
TO QUASH SERVICE OF SUMMONS
TENTATIVE RULING
The
Motion for an Order Quashing Service of Summons as to Defendants
Kohl’s Inc.; Michelle D. Gass, Louis Bellassai, and Le Dabney is GRANTED.
Background
On February 02, 2022, Pro se Plaintiff Doe
Ibarra filed a Complaint on behalf of himself and the general public against
Kohl’s Department Stores, Inc.; Kohl’s Seal Beach Store #10604; Kohl’s Inc.
(collectively Kohl’s); et al.
Plaintiff’s Complaint asserts 50 Causes of
Action against Kohl’s and other named individuals.
On January 17,
2023, Defendants Kohl’s Inc., Michelle D. Gass; Louis Bellassani, and Le
Babney, by special appearance filed a Motion to Quash Service of Summons. Defendants submitted a reply on February 01,
2023.
No opposing
papers have been filed.
Legal Standard
A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . ..”. (Code Civ. Proc., § 418.10 subd. (a).) A court lacks jurisdiction over a party if there has not been proper service of process. (See Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)¿¿¿ ¿¿
“When a motion to quash is
properly brought, the burden of proof is placed upon the plaintiff to establish
the facts of jurisdiction by a preponderance of the evidence.” (Aquila, Inc.
v. Sup. Ct. (2007) 148 Cal.App.4th 556, 568.)¿
Request for Judicial Notice
The Court may take judicial notice of
records of any court of record of the United States. (Evid. Code, § 452(d)(2).)
However, the court may only judicially notice the existence of the record, not
that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th
1548, 1565.)
Defendants ask the Court to take Judicial
Notice of the following:
1)
A Minute Order issued by this Court regarding
the July 5, 2022 initial case management conference, confirming Plaintiff’s
lack of appearance and scheduling an Order to Show Cause (“OSC”) Re: Dismissal
for August 5, 2022. A true and correct copy of this Court’s July 5, 2022 Minute
Order is attached to the concurrently filed Declaration of Aaron M. Rutschman
as Exhibit 2.
2) Proofs of Service filed by Plaintiff with this Court on July 6, 2022. A true and correct copy of the Proofs of Service filed by Plaintiff are attached to the concurrently filed Declaration of Aaron M. Rutschman as Exhibit 3.
3) A Minute Order issued by this Court regarding the August 5, 2022 OSC Re: Dismissal, confirming Plaintiff’s appearance and this Court’s order that Plaintiff “prosecute his case by moving forward with Request for Default as to all Defendants who have been served.” A true and correct copy of this Court’s August 5, 2022 Minute Order is attached to the concurrently filed Declaration of Aaron M. Rutschman as Exhibit 4.
4) A Minute Order issued by this Court regarding the October 5, 2022 OSC Re: Default Judgment, confirming Plaintiff’s appearance and the special appearance of Lisa Yumi Mitchell on behalf of Defendants to challenge service and jurisdiction. A true and correct copy of this Court’s October 5, 2022 Minute Order is attached to the concurrently filed Declaration of Aaron M. Rutschman as Exhibit 5.
5) A Minute Order issued by this Court regarding the December 6, 2022 Status Conference Re: Service, confirming Plaintiff’s appearance and the special appearance of Aaron M. Rutschman on behalf of Defendants to challenge service and jurisdiction. A true and correct copy of this Court’s October 5, 2022 Minute Order is attached to the concurrently filed Declaration of Aaron M. Rutschman as Exhibit 6.
Defendants’ request for
Judicial Notice is GRANTED.
Discussion
Special appearing Defendants Kohl’s Inc.; Michelle D. Gass, Louis Bellassai, and Le Dabney (collectively “Defendants”) move for an Order quashing Plaintiff’s purported service of the Summons and Complaint. No opposition to this Motion has been filed. Defendants assert Plaintiff was personally served at the address provided on his Notice of Change of Address. (Rutschman Supp. Decl. ¶¶ 2, 4, Ex. 9, 11.)
Service by mail under California Code of Civil Procedure section 415.30 states, in the relevant part:
“Service of a summons pursuant to this section is deemed
complete on the date a written acknowledgment of receipt of summons is
executed, if such acknowledgment thereafter is returned to the sender.”
(Code Civ. Proc., § 415.30 subd. (c).)
Defendants allege that service was ineffective because service by mail without the execution of a signed acknowledgment receipt does not constitute proper service. (See Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1066 [confirming that service under section 415.30 requires acknowledgment of receipt].) Plaintiff’s Proof of Service for the Defendants mailed on June 15, 2022, fail to show a signature acknowledging receipt of the Summons and Complaint. (See also Rutschman Decl. ¶ 2, Ex. 1.)
“Code of Civil Procedure section 415.30, effective July 1, 1970, which authorizes service of summons by mail, expressly predicates the efficacy of such service upon the execution and return of an acknowledgment of service. If the party addressed fails to do so, there is no effective service, he merely becomes liable for the reasonable expenses of service in a more conventional manner.” (Thierfeldt v. Marin Hosp. Dist. (1973) 35 Cal.App.3d 186, 199.)
Here, because Defendants never signed a receipt of acknowledgment, Defendants never consented to service by mail, and the service of the summons and complaint remains incomplete.
Therefore, the Motion is GRANTED.
Conclusion
The
Motion for an Order Quashing Service of Summons as to Defendants
Kohl’s Inc.; Michelle D. Gass, Louis Bellassai, and Le Dabney is GRANTED.
The Court advances and vacates the Case Management Conference set on May 22, 2023. The Court sets an Order to Show Cause re: Proof of Service on June 8, 2023, at 9 a.m.
Moving party to give notice.