JOSE JUAN CASTILLO VS JOHN ALLEN SMITH ET AL

Tentative Rulings

Case Number: ****9853    Hearing Date: February 27, 2020    Dept: SEC

CASTILLO v. SMITH

CASE NO.: ****9853

HEARING: 02/27/2020

JUDGE: OLIVIA ROSALES

#6

TENTATIVE RULING

Defendant KELTERITE CORPORATION’s Demurrer to Plaintiff’s First Amended Complaint is OVERRULED.

Moving Party to give Notice.

No Opposition filed as of February 25, 2020.

This personal injury action was filed by Plaintiff on May 2, 2017. On November 16, 2017, the Court OVERRULED Defendant Kelterite’s demurrer to the second cause of action for negligence, third cause of action for negligent hiring, training, supervision, and retention, and fourth cause of action for vicarious liability in Plaintiff’s Complaint, and GRANTED Kelterite’s Motion to Strike punitive damages in Plaintiff’s Complaint. Plaintiff was given 15 days to file an amended complaint in accordance with the Court’s ruling on the Motion to Strike.

On February 1, 2019, Plaintiff filed a First Amended Complaint asserting the following causes of action: (1) Motor Vehicle Negligence; (2) Negligence; (3) Negligent Hiring, Training, Supervision, and Retention of Employees; and (4) Vicarious Liability.

Kelterite now demurs to Plaintiff’s second, third, and fourth causes of action pursuant to CCP ;430.10(e).

As indicated above, the Court previously overruled demurrers to the second, third, and fourth causes of action. Kelterite is not permitted to again demur to those causes of action. Its only attack would have been by way of a timely motion for reconsideration. (Bennett v. Suncloud (1999) 56 Cal.App.4th 91, 96.) The demurrer to the second, third, and fourth causes of action is overruled.

Case Number: ****9853    Hearing Date: December 04, 2019    Dept: SEC

CASTILLO v. SMITH, et al.

CASE NO.:  ****9853

HEARING:  12/4/19

#9

TENTATIVE ORDER

Specially appearing Defendant Timothy Peterson’s motion to quash service of summons on first amended complaint is GRANTED.

Moving Party to give NOTICE.

Specially appearing Defendant Timothy Peterson moves to quash service of summons pursuant to CCP 415,20 and 418.10.

“In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with· the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and 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. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof.” (CCP 415.20(a).)

At the 11/19/19 hearing on this motion, Plaintiff advised the court that an Opposition was filed in May 2019, and requests the court to consider the Opposition.

As an initial matter, the court thanks the parties for their patience during this e-filing transition process. Although the Opposition appears on the court’s docket, the system sometimes does not “relate” all documents to the actual hearing. Therefore, this court was not able to review the Opposition prior to the hearing.

Having now reviewed the opposition, the ruling remains the same.

Here, Timothy Peterson rebutted the presumption of valid service by submitting the declaration of Cindy Padillo, who declares that she is a receptionist at Sialic Contractors Corporation, located at 12240 Woodruff Avenue, Downey, CA. (Padillo Decl., ¶ 1.) Timothy Peterson was sub-served at Sialic Contractors Corporation, and Peterson is not an employee, nor does he work for Sialic in any capacity whatsoever. (Id. at ¶ 6.) Once the process server left, Padillo realized that the address of place of service incorrectly said it was 12231 Pangborn Avenue, Downey, CA. (Id. at ¶ 8.)

Plaintiff’s opposition merely insists that 12231 Pangborn Avenue is Defendant’s place of business, but does not properly address Padillo’s declaration, stating that the documents were received at a completely different address, and that Timothy Peterson does not work at that address.

Accordingly, sub-service upon Timothy Peterson was improper. The motion is GRANTED.

Case Number: ****9853    Hearing Date: November 19, 2019    Dept: SEC

CASTILLO v. SMITH, et al.

CASE NO.:  ****9853

HEARING:  11/19/19

JUDGE: MARGARET M. BERNAL

#5

TENTATIVE ORDER

Specially appearing Defendant Timothy Peterson’s unopposed motion to quash service of summons on first amended complaint is GRANTED.

Moving Party to give NOTICE.

Specially appearing Defendant Timothy Peterson moves to quash service of summons pursuant to CCP 415,20 and 418.10.

“In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with· the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and 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. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof.” (CCP 415.20(a).)

Here, Timothy Peterson was sub-served at Sialic Contractors Corporation. Cindy Padillo declares that Timothy Peterson is not an employee, nor does he work for Sialic in any capacity whatsoever. (Padillo Decl., Par. 6.)

Accordingly, sub-service upon Timothy Peterson was improper. The motion is GRANTED.