Judge: Yolanda Orozco, Case: 22STCV03959, Date: 2023-03-20 Tentative Ruling
Case Number: 22STCV03959 Hearing Date: March 20, 2023 Dept: 31
MOTION FOR RECONSIDERATON
TENTATIVE RULING
Plaintiff’s Motion is DENIED.
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 Dabney, by special appearance filed a Motion to Quash Service of Summons.
On February 08, 2023, the Court granted Defendants Kohl’s Inc.’s Motion for an Order Quashing Service of Summons as to Defendants Kohl’s Inc.; Michelle D. Gass, Louis Bellassai, and Le Dabney.
On February 24, 2023, Plaintiff filed a Motion for Reconsideration of the February 08, 2023 Order.
The Motion is now before the Court.
LEGAL STANDARD
Code of Civil Procedure section 1008 provides, in pertinent part:¿¿¿
¿¿
“(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make an application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.¿¿
[. . .]¿
¿
(e)¿This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”¿¿
Code of Civil Procedure section 473 subdivision (b) contains both discretionary and mandatory relief provisions. (See Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) Mandatory relief is only available based on an attorney’s affidavit of fault that results in default, default judgment, or dismissal of the action. (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25-26.)
The discretionary relief provision of section 473 subdivision (b) states, in relevant part:
“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”
(Code Civ. Proc., § 473.)
Code of Civil Procedure section 473 subdivision (d) states:
“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”
(Id.)
DISCUSSION
Plaintiff moves for an Order to set aside the February 08, 2023 Order Quashing the Service of Summons on the Kohl Defendants.
Plaintiff denominates his Motion as one for reconsideration, but Plaintiff fails to comply with the requirements for such a motion as set forth in Code of Civil Procedure section 1008 subdivision (a). (All subsequent statutory references are to the Code of Civil Procedure unless otherwise indicated.) More importantly, section 1008(a) is not mentioned in Plaintiff’s notice of motion or in his moving papers. Instead, Plaintiff’s grounds for relief are made under section 473 et seq. Therefore, the Court will consider Plaintiff’s motion under the discretionary relief provisions of section 473 subdivision (b).
Plaintiff seeks to set aside the February 08, 2023 Order on the basis that the Kohl Defendants served improper notice by mail of the Motion to Quash Service of Summons by serving Defendant at:
“Attn: Mr. Antonio Ibarra, Plaintiff
9025 Wilshire Blvd., Suite 500
Beverly Hills CA 90211-1867”
Instead of:
“BRB WMS-LOGAN-ESQ.
Attn: Mr. Antonio Ibarra,
9025 Wilshire Blvd., Suite 500
Beverly Hills CA 90211-1867”
Plaintiff asserts that the inclusion of “BRB WMS-LOGAN-ESQ.” in the mailing address is necessary because the mailroom that sorts the mail would not have recognized Plaintiff by his own name alone because he does not work there nor live at that address. (Ibarra Decl.) Accordingly, Plaintiff asserts he lacked notice of the February 08, 2023 hearing and Motion.
The Court reviewed the proofs of service filed by the Kohl Defendants in their moving papers and subsequent notice of the ruling and found that service was not done by mail but through personal service at the address plaintiff provided: 9025 Wilshire Blvd., Suite 500
Beverly Hills CA 90211-1867.
Defendants’ Proof of Services were affidavits by Stella Grainder that states:
“I caused to be delivered such document(s) in an envelope to be hand delivered by ASAP LEGAL SERVICES to the person(s) at the address (es) set forth below.
Attn: Mr. Antonio Ibarra, Plaintiff
9025 Wilshire Blvd., Suite 500
Beverly Hills CA 90211-1867”
Code of Civil Procedure section 2009 expressly provides that an affidavit may be used to prove service:
“An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, and in uncontested proceedings to establish a record of birth, or upon a motion, and in any other case expressly permitted by statute.”
(Id.; see also National Advertising Co. v. City of Rohnert Park (1984) 160 Cal.App.3d 614, 618.)
“[P]roof of service fulfills the function of establishing that ‘procedures implementing the constitutional requirements of due process were followed giving assurance that service really has been made.’ [Citation.] Accordingly, when adequate proof of service is available, it is of no legal import that a party actually may not have received notice. [Citation] That being the case, the courts are very strict in applying the statutory standards for proof of service; failure to strictly comply with those standards deprives the court of jurisdiction to act.” (Oats v. Oats (1983) 148 Cal.App.3d 416, 420.)
Plaintiff’s declaration in support of the motion fails to rebut Kohl’s Defendants’ proofs of service upon Plaintiff by personal service. More importantly, no adverse action was taken against Plaintiff since the Defendants’ Motion was a Motion to Quash the Service of Summons. (See Domingo v. Los Angeles County Metropolitan Transportation Authority (1999) 74 Cal.App.4th 550, 554 [“It would violate long-standing notions of due process if an adverse action could be taken against a party without notice.”].) Plaintiff is not being deprived of property or suffering a penalty or forfeiture. Defendants’ Motion to Quash was granted on the basis that Plaintiff failed to prove that service by mail on Defendants was effective because no receipt of acknowledgment was filed with the Court. (See Min. Or. 02/08/23) It was not effective.
Neither this instant Motion nor Plaintiff’s accompanying declaration address this issue and Plaintiff does not claim that service upon the Kohl Defendants was proper. Therefore, the Court is without jurisdiction over the special appearing Defendants to order a rehearing of the Motion to Quash since Plaintiff’s proof of service of summons remains defective.
Moreover, for discretionary relief under section 473(b), Plaintiff was required to include a copy of the “pleading proposed to be filed,” meaning an opposition to the Kohl Defendants’ Motion to Quash, “otherwise the application shall not be granted[.]”
Accordingly, the Court declines to grant Plaintiff relief from the Order Quashing Service of Summons as to Defendants Kohl’s Inc.; Michelle D. Gass, Louis Bellassai, and Le Dabney.
Plaintiff may obtain relief from the February 08, 2023 Order by properly re-serving the Kohl Defendants in accordance with the rules for service and filing a new proof of service with the Court.
The Motion is DENIED.
CONCLUSION
Plaintiff’s Motion is DENIED.
Clerk is to give notice.