Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107
CIVIL LAW & MOTION
Juan Tafoya et al vs Baker Perkins Inc
|Hearing Date:||Tue Oct 08, 2013 9:30|
Nature of Proceedings: Motion QuashMotion to quash service of summons and complaint RULING: Granted BACKGROUND On August 2, 2013, plaintiffs were allowed to name NuSil Corporation as Doe 4. On August 12, 2013, plaintiffs served NuSil Corporation’s agent for service of process, Richard A. Compton, by substituted service upon Sabrina Page, at the business address of 1050 Cindy Lane in Carpinteria. Ms. Page was described in the Proof of Service as “person in charge, authorized to accept.” On September 12, 2013, a motion to quash service of summons was filed. While the face page of the motion stated that the attorneys represented NuSil Technology, LLC, the signature of counsel on the Notice of Motion stated that counsel represented “Specially Appearing NuSil Corporation.” The motion described the current action as one for products liability, based upon the use by plaintiffs of a Baker Perkins mixer in the course and scope of their employment with NuSil Technology, LLC. Plaintiffs were allowed to name NuSil Corporation, the corporate predecessor to NuSil Technology, LLC, as a defendant upon representing to the court that NuSil Corporation had modified the mixer and placed it into operation. The motion describes the corporate history as commencing in 1979 when NuSil was founded as an employee-owned corporation to develop and produce specialty silicone products for various industries. NuSil Technology was converted to an LLC in 2005. Although NuSil Corporation held an interest in Nusil Technology, it did not actively engage in any activity. NuSil Corporation established NuSil Technology on 5/27/05, and contributed assets and liabilities into NuSil Technology LLC in exchange for common and preferred interests on 6/10/05. NuSil Corporation later transferred its interest in NuSil Technology, and dissolved in 2010, prior to plaintiffs’ 2011 injuries. [The Court notes that none of this information is supported by any competent evidence.] The motion contends that NuSil is a dissolved corporation, and service is therefore determined by CCP § 416.20. It further contends that no trustee was ever appointed on its behalf, and that service must therefore be governed by Section 416.20(b). It asserts that the person upon whom service was made, Sabrina Page, is not an officer, director, or person having charge of the assets of NuSil Corporation at the time of its dissolution, has never been agent for service of process for NuSil Corporation, and is not a person in charge at the office or usual place of business of the person to be served, or authorized to accept such service. It asserts that Ms. Page was employed as a receptionist at NuSil Technology, LLC, a different entity, and that handing her the summons and complaint could not be proper service. It further asserts that she works in a different building than the authorized agent. Since no proper service on NuSil Corporation was effected, it asserts the motion to quash must be granted. While opposition was due on 9/25/13, no opposition was filed with the Court until 10/2. ANALYSIS: The Court has not considered the late-filed opposition papers. The Court notes that its file reflects the filing of yet another Proof of Service upon NuSil Corporation, so this motion could be moot. To the extent it is not, the motion will be granted, in spite of its defects. The motion fails to provide any evidence to support its recitation of the corporate history of the NuSil entities. Further, while the motion does not refute the claim made on the proof of service that Richard A. Compton is the authorized agent for service of process upon NuSil Corporation, it fails to present any competent evidence with respect to Mr. Compton’s place of employment. The declaration of Sabrina Page with respect to his place of employment provides no information to support the conclusion that she has personal knowledge of Mr. Compton’s actual place of employment, and is therefore incompetent on that issue. However, the motion does present competent evidence that the location of Ms. Page’s employment is not his place of business, that she is not authorized to accept service of process upon Mr. Compton (the authorized agent for service of process upon NuSil Corporation), and that she has never had any relevant relationship with NuSil Corporation such that service upon her on its behalf would be appropriate. Because Ms. Page had no relationship with NuSil Corporation, is not the person in charge of the place of business of NuSil Corporation’s agent for service of process (Richard A. Compton), and because she was not authorized by Mr. Compton to accept service on his behalf, no effective service could have taken place, requiring that the motion be granted.