ESTATE OF MICHAEL STEPHEN SEXTON, ET AL. VS KENMORE APPLIANCES, AN ENTITY OF UNKNOWN FORM, ET AL.

Tentative Rulings

Case Number: *******0281 Hearing Date: June 7, 2023 Dept: W

ESTATE OF MICHAEL STEPHEN SEXTON, ET AL. V. KENMORE APPLIANCES, AN ENTITY OF UNKNOWN FORM, ET AL.

DEFENDANT ELECTROLUX HOME PRODUCTS, INC. AND SPECIALLY APPEARING NONEXISTENT ENTITY “FRIGIDAIRE’S” MOTION TO QUASH SERVICE OF PROCESS ON “FRIGIDAIRE”

Date of Hearing: June 7, 2023 Trial Date: None set.

Department: W Case No.: *******0281

Moving Party: Defendant Electrolux Home Products, Inc. and Specially Appearing Nonexistent Entity “Frigidaire”

Responding Party: Plaintiffs Estate of Michael Stephen Sexton, Rachael Marie Beltz, and Ryan Stephen Beltz

BACKGROUND

This is a wrongful death action arising out of the death of Michael Stephen Sexton. Plaintiffs Estate of Michael Stephen Sexton, Rachael Marie Beltz, and Ryan Stephen Beltz allege Defendant Ron Conover purchased a Kenmore Elite Gas Range, Model Number VF33544960, to be installed in his home. The home was subsequently rented to the decedent, Michael Stephen Sexton. On February 5, 2021, decedent Michael Stephen Sexton attempted to ignite the Kenmore Elite Gas Range when a gas leak caused by the defective component parts caused an explosion, taking Mr. Sexton’s life.

On January 23, 2023, Plaintiffs filed a complaint against Defendants Kenmore Appliances, Frigidaire, Electrolux Home Products, White Consolidated Industries, Inc., Ron Conover asserting causes of action for wrongful death – negligence, wrongful death – products liability, wrongful death – premises liability, and survival action.

[TENTATIVE] RULING

Defendant Electrolux Home Products, Inc. And Specially Appearing Nonexistent Entity “Frigidaire’s” Motion to Quash Service Of Process On “Frigidaire” is GRANTED.

REQUEST FOR JUDICIAL NOTICE

Defendant Electrolux Home Products, Inc. and Specially Appearing Nonexistent Entity “Frigidaire” request this court take judicial notice of the following documents:

(1) screenshot of California Secretary of State business search page using the search term “Frigidaire,” which shows there is no known existing registered corporate entity known as Frigidaire (Exh. 1); (2) screenshot of North Carolina Secretary of State business search page using the search term “Frigidaire,” which shows there is no known existing registered corporate entity known as Frigidaire (Exh. 2); (3) proof of Service of Summons and Complaint by Plaintiffs on Defendant Electrolux Home Products, Inc. (Exh. 3); and (4) alleged Proof of Service of Summons and Complaint by Plaintiffs on nonexistent entity “Frigidaire, an entity of unknown form” (Exh. 4).

The court grants the request for judicial notice.

DISCUSSION

Defendant Electrolux Home Products, Inc. and Specially Appearing Nonexistent Entity “Frigidaire” move this court for an order pursuant to Section 418.10 of the California Code of Civil Procedure quashing service of summons in this action on “Frigidaire” on the grounds that 1) “Frigidaire” does not exist as a distinct legal entity; 2) this Court lacks personal jurisdiction over “Frigidaire”; and 3) “service” was improperly effectuated.

“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 . . . .” (CCP 418.10(a).) When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) “A court lacks jurisdiction over a party if there has not been proper service of process.” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

“Frigidaire” argues “Frigidaire” is a brand name, not a legal entity. (Graham Decl. 5-6.) “Frigidaire” contends the brand name’s owner and properly named defendant, Electrolux, has already been sued and served. (Graham Decl. 7.) As a result, the instant civil action cannot be maintained in California against a nonexistent entity.

Plaintiff opposes the motion to the extent “Frigidaire” seeks an order from the court dismissing “Frigidaire” entirely. Plaintiffs argue there should be no question as to whether Electrolux is doing business under the fictitious business name “Frigidaire,” yet no filing with the California Secretary of State or other authority has been made establishing this use. Plaintiffs also contend the parties had reached an agreement to allow counsel for Defendant Electrolux to file an Answer to Plaintiff’s Complaint on

behalf of Defendant Electrolux Home Products, Inc., Individually and Doing Business as Frigidaire.

Although California statute prohibits a person or entity from conducting business under a fictitious business name unless they have followed all the registration procedures, this does not determine whether a FBN or DBA may be sued separately in California. “’The business name is a fiction, and so too is any implication that the business is a legal entity separate from its owner.’” (Pinkerton's, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1348.) “’[W]here a person or corporation elects to follow the statutory procedure of section 17900 et seq. of the Business and Professions Code, it has held itself out to those with whom it does business as having adopted that name for all business purposes. Notice to it under that name is all that the law requires.’) But while a corporation may be sued by its fictitious business name, once its true name is discovered, all further proceedings should be in the corporate name. (Code Civ. Proc., 474; see Ballantine & Sterling, Cal. Corporation Law (4th ed. 1996) 49.04, pp. 3–50.8 to 3–52.)” (Id. at p. 1349.)

Because Frigidaire does not exist as a legal entity, Plaintiffs cannot proceed against it. Accordingly, Defendant Electrolux Home Products, Inc. And Specially Appearing Nonexistent Entity “Frigidaire’s” Motion to Quash Service Of Process On “Frigidaire” is GRANTED.