Tentative Ruling: Parker Brandt vs Fresno Pacific University et al
Case Number
25CV00883
Case Type
Hearing Date / Time
Mon, 07/27/2026 - 10:00
Nature of Proceedings
1. CMC; 2. Demurrers (2); 3. Motions to Quash (2); 4. Motion for Sanctions
Tentative Ruling
Parker Brandt v. Fresno Pacific University, et al.
Case No. 25CV00883
Hearing Date: July 27, 2026
HEARING:
- Motion of Defendant Raymond Winter to Quash Service of Summons
- Motion of Defendant Robert Foster to Quash Service of Summons
- Demurrer of Defendant Raymond Winter to Complaint
- Demurrer of Defendant Robert Foster to Complaint
- Motion of Defendants Westmont College and Russel Smelley for Sanctions
ATTORNEYS: For Plaintiff Parker Brandt: Daryl J. Williams
For Defendants Fresno Pacific University, Robert Foster, Dr. Raymond Winter: Christopher Campbell, Angelique Hernandez, Emily Gunderson, Lydecker
For Defendants Westmont College and Russel Smelley: Colleen A. Deziel, Peter B. Rustin, Anderson, McPharlin & Conners LLP
TENTATIVE RULING:
- The motions of defendants Raymond Winter and Robert Foster to quash service of summons are granted. Any service of process asserted as to defendants Winter or Foster based upon delivery of summons to Amaris Garces on April 6, 2026, is quashed and determined to be invalid.
- Based upon the lack of effective service on defendants Raymond Winter and Robert Foster, the demurrers of defendants Raymond Winter and Robert Foster to the complaint are ordered off calendar.
- The motion of defendants Westmont College and Russel Smelley for sanctions pursuant to Code of Civil Procedure section 128.7 is continued to October 12, 2026, at 10:00 a.m.
Background:
On February 10, 2025, plaintiff Parker Brandt filed his complaint in this action asserting causes of action for negligence arising out of an injury occurring while competing in a track and field meet. Brandt alleges that he was a member of the track and field team at defendant Fresno Pacific University (Fresno). The team was coached by defendants Dr. Raymond Winter and Robert Foster. The meet took place at defendant Westmont College (Westmont), whose team was coached by defendant Russel Smelley.
On January 8, 2026, Westmont and Smelley (collectively, Westmont Defendants) filed their answer to the complaint, generally denying the allegations thereof and asserting 23 affirmative defenses.
On February 11, 2026, Fresno concurrently filed a motion to quash service of summons and a demurrer to the complaint.
On April 1, 2026, the Westmont Defendants filed a motion for an award of monetary sanctions pursuant to Code of Civil Procedure section 128.7. On May 7, the Westmont Defendants filed a notice of errata for this motion.
On April 7, 2026, plaintiff filed a proof of service of summons as to defendant Foster asserting substituted service on April 6.
On May 5, 2026, plaintiff filed a proof of service of summons as to defendant Winter asserting substituted service on April 6.
On May 6, 2026, Winter concurrently filed a motion to quash service of summons and a demurrer to the complaint. Also on May 6, Foster concurrently filed a motion to quash service of summons and a demurrer to the complaint.
On May 20, 2026, plaintiff filed oppositions to Fresno’s motion to quash service of summons, Fresno’s demurrer, and Westmont Defendants’ motion for sanctions.
On May 29, 2026, Fresno filed replies to its motion to quash service of summons and demurrer, and the Westmont Defendants filed a reply as to their motion for sanctions. Also on May 29, Foster and Winter filed notices that no opposition had been received as to either their motions to quash service of summons or their demurrers.
On June 3, 2026, Winter and Foster filed a supplement to their notices of non-opposition in the nature of a declaration of a paralegal with counsel for Winter and Foster confirming service on counsel for plaintiff and communications with plaintiff’s counsel, but also noting a subsequent rejection of a follow-up email to plaintiff’s counsel.
On June 4, 2026, Fresno filed its motion to compel discovery from plaintiff Brandt.
On June 8, 2026, the court granted Fresno’s motion to quash service of summons and determined that service of process on Leigh Spencer in December 2025 was invalid. Based upon that determination, the court ordered Fresno’s demurrer off calendar. The court also continued the motions of Winter and Foster to quash service of summons, the demurrers of Winter and Foster, and the motion of the Westmont Defendants to this hearing date of July 27. The court further ordered any opposition to the motions and demurrers of Winter and Foster, as well as any response to evidence filed in reply to the Westmont Defendants’ motion, to be filed by July 14.
On July 6, 2026, the court ordered off calendar Fresno’s motion to compel responses to discovery on the grounds that there was then no personal jurisdiction over Fresno, rendering Fresno’s motion moot.
On July 9, 2026, the Westmont Defendants filed a motion for sanctions pursuant to Code of Civil Procedure section 128.7. This motion is noticed for hearing on October 12, 2026.
No opposition, response, or other document was filed by July 14, 2026, as required by the court’s June 8 order. Instead, on July 15, apparently after Winter and Foster filed notices that no opposition had been filed or received, plaintiff filed opposition to the motions and demurrers without explanation for the failure to file by the date required in the court’s order (which is also nine court days prior to the hearing).
Analysis:
(1) Motions to Quash Service of Summons
“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, 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)(1).)
“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’ ” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413, fn. and citation omitted.)
“ ‘[T]he original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void.’ [Citation.]” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 809.)
On April 7, 2026, Brandt filed a proof of service asserting service of summons on Foster. The proof of service asserts service on April 6 by substituted service on “Amaris Garces – Seminary Coordinator.”
On May 5, 2026, Brandt filed a proof of service asserting service of summons on Winter. The proof of service asserts service on April 6 by substituted service on “Amaris Garces – Seminary Coordinator.”
“A summons may be served on a person not otherwise specified in this article by delivering a copy of the summons and of the complaint to such person or to a person authorized by him to receive service of process.” (Code Civ. Proc., § 416.90.)
“If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section … 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of their office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” (Code Civ. Proc., § 415.20, subd. (b).)
Both Winter and Foster provide evidence that each does not have an office in the Seminary Building where the copy of the summons and complaint were served. (Winter decl., ¶¶ 2-6; Foster decl., ¶¶ 2-6.) Neither has any connection with Amaris Garces. (Winter decl., ¶ 7; Foster decl., ¶ 7.)
“The filing of a proof of service creates a rebuttable presumption that the service was proper. However, the presumption arises only if the proof of service complies with the applicable statutory requirements.” (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.)
Winter and Foster have each presented substantial evidence that the service did not comply with the statutory requirements for substituted service.
Opposition was not timely filed to these motions. The court noted the lack of opposition when this matter was originally on calendar for hearing on June 8. At that hearing—attended by counsel for Brandt—the court continued the hearing to this date to provide an opportunity for opposition. The court’s order of June 8 set the deadline for filing opposition as July 14, which is the same date opposition would be due pursuant to Code of Civil Procedure section 1005, subdivision (b) (opposition due nine court days before the hearing). Brandt again did not file timely opposition, but instead filed late opposition. The court exercises its discretion not to consider the late-filed opposition. (See Cal. Rules of Court, rule 3.1300(d).)
The court finds that Brandt has not met his burden of proof to show effective service on Winter and Foster. (The court notes that even if the oppositions were considered, the court would reach this same conclusion based upon the evidence presented in the motions and oppositions. (See also Chinese Theater, LLC v. Starline Tours USA, Inc. (2025) 115 Cal.App.5th 1048, 1059.)) The motions to quash service will therefore be granted.
(3) Demurrers
Because the court will grant Winter’s and Foster’s motions to quash service of summons, their respective demurrers are moot and will be ordered off calendar.
(4) Westmont Defendants’ Motion for Sanctions
There are now two motions for sanctions filed by the Westmont Defendants under Code of Civil Procedure section 128.7.
On June 8, 2026, the court continued the motion for sanctions filed on April 1, 2026, to this hearing date based upon an issue of service of the safe harbor notice.
On July 9, 2026, the Westmont Defendants filed a second motion for sanctions relating essentially to the same issues as the first motion for sanctions.
To avoid duplication of efforts, the court will continue the hearing on the April 1 motion for sanctions to be heard with the July 9 motion for sanctions. Nothing herein should be construed as suggesting that the court has formed any opinion as to the merits of the motions.