Mark Sellars, et al. v. Patrick Leahy, et al

Case Number

20CV04132

Case Type

Hearing Date / Time

Wed, 05/01/2024 - 10:00

Nature of Proceedings

Motion of Defendant Honor Home Care Services California, Inc.’s Motion to Quash Service of Summons and Complaint

Tentative Ruling

For Plaintiffs Mark Sellars, individually and as Trustee of the Rosemary Free Trust u/d/t dated September 13, 2000, and Rebecca Morin, Conservator of the Estate and Person of Rosemary Free Leahy: David J. Tappeiner 

For Defendants Channe Coles and The Law Office of Channe G. Coles: R. Chris Kroes

For Defendants Patricia Wollum and Susan Reynolds: Gabriella L. Sternfeld, David A. Napper, Gregory K. Sabo

For Defendant and Cross-Complainant Help Unlimited, Inc.: Brandt O. Caudill, Joan E. Trimble

For Defendant Honor Home Care Services California, Inc.: Marilyn R. Victor, Ashton L. McKinnon

For Defendant Patrick Leahy: Self-Represented                                             

TENTATIVE RULING:  

For the reasons set forth herein, Honor Home Care Services California, Inc.’s motion to quash service of summons and complaint is granted.

Background: 

This action was commenced by the filing of the original complaint on December 11, 2020, by plaintiff Mark Sellars (Sellars), in which Sellars alleges he is the biological son of Rosemary Free Leahy (Rosemary) and the trustee of the Rosemary Free Trust u/d/t dated September 13, 2000. (Note: Due to common surnames and to avoid confusion, the court will refer to Rosemary by her first name. No disrespect is intended.) The original complaint alleged two causes of action against defendant Patrick Leahy (Leahy) for elder abuse and financial elder abuse of Rosemary. Leahy is Rosemary’s spouse.

Leahy, who is self-represented, filed an answer to the original complaint on January 5, 2021, generally denying certain allegations, admitting others, and asserting ten affirmative defenses.

On January 23, 2023, the court granted the motion of Sellars for leave to file a first amended complaint (FAC). Sellars filed the FAC on the same date. The FAC added named plaintiffs Sellars as trustee of the trust and Rebecca Morin (Morin) who is Rosemary’s conservator, and named defendants the Law Office of Channe G. Coles, Channe Coles (Coles) (collectively, the Coles Defendants), Patricia Wollum (Wollum), Susan Reynolds (Reynolds), and Help Unlimited. The FAC alleged five causes of action: (1) elder abuse (against all defendants); (2) financial elder abuse (against all defendants); (3) legal malpractice (against the Coles Defendants); (4) intentional infliction of emotional distress (against all defendants); and (5) negligence (against all defendants).

On April 19, 2023, Help Unlimited filed a verified answer to the FAC and a cross-complaint against cross-defendants Leahy and Honor Home Care Services California, Inc. (Honor), alleging causes of action for indemnity, contribution, and declaratory relief.

On April 20, 2023, the Coles Defendants filed a demurrer to the FAC together with a motion to strike portions of the FAC.

On May 23, 2023, plaintiffs filed a request for dismissal without prejudice of all claims and causes of action alleged against Help Unlimited.

On May 26, 2023, Help Unlimited filed a request for dismissal of its cross-complaint against Leahy and Honor, without prejudice.

Also on May 26, 2023, plaintiffs improperly filed an amendment to the FAC to substitute Honor for Help Unlimited wherever it appeared in the FAC.

On June 22, 2023, Wollum and Reynolds filed a demurrer to the FAC together with a motion to strike portions of the FAC.

On July 5, 2023, plaintiffs filed responses to the demurrer and motion to strike of the Coles Defendants and the demurrer and motion to strike of Wollum and Reynolds, asserting that plaintiffs have elected to amend the FAC and to amend a “Doe” amendment (which plaintiffs contend was filed as a second amended complaint), by filing a third amended complaint to address the issues raised by the Coles Defendants, Wollum, and Reynolds’ respective demurrers and motions to strike.

On July 6, 2023, plaintiffs filed a motion for leave to file a third amended complaint (which should have been a motion for leave to file a second amended complaint) which plaintiffs asserted was prepared in response to the demurrers and motions to strike discussed above. The motion was opposed by the Coles Defendants.

On July 11, 2023, plaintiffs filed a request for dismissal of all causes of action against Honor, without prejudice.

On July 12, 2023, Wollum and Reynolds filed a notice requesting that the court take their demurrer and motion to strike off-calendar.

On July 19, 2023, the court continued the hearing on the pending demurrer to and motion to strike the FAC filed by the Coles Defendants to be heard together with plaintiffs’ motion for leave to file a third amended complaint.

On July 26, 2023, plaintiffs filed an amended motion for leave to file a third amended complaint.

On August 16, 2023, the court ordered the motion of plaintiffs for leave to file a third amended complaint off-calendar based on improper and untimely service of that motion. (See Aug. 16, 2023, Minute Order.)

In addition, because plaintiffs attempted to file an amended complaint rather than a substantive opposition to the demurrer, the court sustained the demurrer of the Coles Defendants to the first amended complaint based on the court’s finding that plaintiffs had implicitly acknowledged that the Coles Defendants’ demurrer had merit. The court granted plaintiffs leave to amend and ordered plaintiffs to file and serve their second amended complaint no later than September 6, 2023. (See Aug. 16, 2023, Minute Order.)

On September 7, 2023, plaintiffs filed a motion for leave to file a second amended complaint to add Honor as a “Doe” defendant.

Also on September 7, 2023, plaintiffs filed a second amended complaint (SAC) adding Honor as a defendant and alleging six causes of action: (1) elder abuse (against all defendants); (2) financial elder abuse (against all defendants); (3) legal malpractice (against the Coles Defendants); (4) intentional infliction of emotional distress (against all defendants); and (5) negligence (against all defendants).

On October 4, 2023, the court granted plaintiffs’ motion for leave to file the SAC.

Plaintiffs filed identical versions of the SAC on September 7, 2023, and October 10, 2023.

As the result of a demurrer and motion to strike heard on December 20, 2023, plaintiffs were given the opportunity to file and serve a third amended complaint (TAC). Plaintiffs filed the operative TAC on January 12, 2024, which added Honor back into the action and made other minor modifications.

The allegations of the TAC are set forth in 151 factually detailed paragraphs. Plaintiffs essentially allege that defendants abused Rosemary financially and emotionally. Plaintiffs allege that Coles untruthfully represented that she was working for Rosemary when she was in fact working for Patrick against Rosemary’s interests.

Honor, specially appearing, now moves to quash service of the third amended summons and TAC on the grounds that the court lacks personal jurisdiction over Honor because the third amended summons and TAC, as well as the proof of service, are inconsistent and substantively defective, and the TAC is not drawn in conformity with the court’s prior order. Plaintiffs have never filed or served a “Doe Amendment,” as to Honor, nor have they identified Honor as any particular Doe in the TAC.

Plaintiffs have not filed an opposition or other response to the motion.

Analysis:

A motion to quash service of summons based on lack of jurisdiction of the court is permitted by Code of Civil Procedure section 418.10, subdivision (a)(1).

“A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action. The form of a summons is prescribed by law, and this form must be substantially observed. [Citation.] Service of a substantially defective summons does not confer jurisdiction over a party [citation] and will not support a default judgment. [Citation.] Notice of the litigation does not confer personal jurisdiction absent substantial compliance with the statutory requirements for service of summons.” (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.)

“When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly; provided, that no default or default judgment shall be entered against a defendant so designated, unless it appears that the copy of the summons or other process, or, if there be no summons or process, the copy of the first pleading or notice served upon such defendant bore on the face thereof a notice stating in substance: “ ‘To the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the fictitious name of (designating it).’ ” The certificate or affidavit of service must state the fictitious name under which such defendant was served and the fact that notice of identity was given by endorsement upon the document served as required by this section. The foregoing requirements for entry of a default or default judgment shall be applicable only as to fictitious names designated pursuant to this section and not in the event the plaintiff has sued the defendant by an erroneous name and shall not be applicable to entry of a default or default judgment based upon service, in the manner otherwise provided by law, of an amended pleading, process or notice designating defendant by his true name.” (Code Civ. Proc., § 474; Italics Added.)

The caption of the TAC identifies Honor as a named defendant, but the body of the TAC, specifically at page 2, lines 4 through 6, states that the TAC is necessary in order to add Honor as a Doe defendant. Because of this, it is unclear in what capacity Honor is being sued. However, reviewing the past motions, where plaintiffs requested leave to add Honor as a Doe defendant, as well as the letter from plaintiffs’ counsel to counsel for Honor, of March 19, 2024, it is clear that plaintiffs are attempting to add Honor as a Doe defendant in the case.

Plaintiffs obtained an order from the court allowing them to substitute Honor into the case as a Doe. They must comply with the statutory requirements for doing so.

As noted above, plaintiffs have not filed a “Doe Amendment” identifying Honor as any of Does 1 through 10, nor do plaintiffs identify which “Doe” Honor is supposed to be replacing in any of the documents that have been filed. Also, neither the summons nor the proof of service of summons indicate that Honor is being sued as one of the Doe defendants.

“The provisions which were added to [Code of Civil Procedure section 474] by the 1953 amendment provide in part as follows: ‘ “no default or default judgment shall be entered against a defendant” ’ sued under a fictitious name ‘ “unless it appears that the copy of the summons or other process * * * served upon” ’ the defendant bears upon its face the notice we have heretofore mentioned as lacking in the summons in question. [Emphasis added.] This statute is not directory but mandatory, and its effect is to deprive the court of the right to proceed against a defendant served with such a defective summons; that is to say, its effect is to make the service of such a defective summons insufficient to give the court jurisdiction over the person of the defendant.” (Armstrong v. Superior Court In and For Los Angeles County (1956) 144 Cal.App.2d 420, 424.)

“[A] plaintiff must comply with the statutory requirements for both the endorsement of the summons and for the recitals in the proof of service before a default or default judgment can be entered.” (Pelayo v. J.J. Lee Management Co., Inc. (2009) 174 Cal.App.4th 484, 496.)

Here, the third amended summons does not indicate on its face that Honor is being sued as a Doe defendant. Further, the complaint itself continues to refer to the remaining Does 1 through 10 without identifying which “Doe” Honor is being substituted into the case as.

Because the summons is defective, the court has not acquired personal jurisdiction over Honor, and the motion to quash must be granted.