Case Number: BC525386    Hearing Date: August 08, 2014    Dept: 46

Case Number: BC525386
ANA MARTINEZ VS SHUI RONG XIAO ET AL
Filing Date: 10/23/2013
Case Type: Civil Rights (General Jurisdiction)

This tentative ruling is posted at 1:20 p.m. on 08-07-2014 and the matter is set for hearing on 08-08-2014 at 8:30 a.m.

If there are no parties other than Plaintiff/Petitioner, then Plaintiff/Petitioner may submit to the tentative without appearance by telephonic notification to the clerk of Dept. 46 between 8:00 a.m. and 4:30 p.m. on a date prior to the hearing or morning prior to the hearing by calling (213) 974-5665, and the court will issue the tentative ruling as the final ruling. If the other parties have appeared in the action, then the parties must first confer and all agree that the tentative ruling will be the final ruling on the matter. If the parties to the matter before the court all agree, a representative of the parties may call the clerk and submit without an appearance, and the court will issue the tentative ruling as the final ruling. If an order is required, it should be lodged directly in Dept. 46 with a copy to adverse/other parties, if any.

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08/08/2014
MOTION TO QUASH SERVICE

TENTATIVE RULING: Motion to Quash is GRANTED pursuant to CCP §415.10. Plaintiff is ordered to pay sanctions of $150 within 30 days to moving party pursuant to CCP 177.5 as this is the third time that Plaintiff has improperly served the moving party. The opposition to the motion filed on the caption of a paralegal service is stricken as only a firm authorized to practice law may file papers in a proceeding.

The name of the defendant in the Amended Complaint is confusing and uncertain. It is not at all clear that plaintiff is not trying to sue American Shoes Group, Inc. (the “corporate entity”) as opposed to a fictitious name American Shoes Group which is a name used by a person named Xaio. One interpretation in the poorly worded Complaint as to what Plaintiff intended is that Plaintiff has sued defendant Xiao as an individual person, not corporation, who does business as American Shoes Group.

Whether Plaintiff intended to sue the corporation or the individual service is defective and must be quashed.

The declarations establish that there is no individual named Xiao who works for the corporate entity.

The service on the corporate entity is defective because there is no showing that the person served was the authorized agent for receipt of service of process.

The proof of service indicates that Shui Rong Xiao, ak [sp] American Shoes Group was served by leaving a copy of the summons and complaint with Ms. “Jazmin Pena, staff.” Then the summons and complaint was mailed to 560 S. Los Angles Street, Suite 21-22.

This attempted substituted service on Xiao was inappropriate and illegal under CCP §415.20 because substituted service requires the service to be at the person’s usual place of business and the evidence indicates that Xiao does not work at 560 S Los Angeles Street, Suite 21-22.

Further, IF Plaintiff intended to sue the corporate entity of American Shoes Group, Inc., then she should have clearly named the party in the Amended Complaint and if were intending to sue that corporate entity she would have served the agent for service of process as shown by the document that is attached to the motion from the California Secretary of State, Jien Fong Yuen. If Plaintiff wanted to do this after the prior motions she could have corrected the name on the Complaint by using form CIV 105 “Amendment to Complaint” form and using the incorrect name portion to correct the name. Instead she named confusingly named a defendant that is not clearly an individual, a person with a dba, or, a business entity.

Furthermore Plaintiff has improperly filed documents with the court that are on the caption of a paralegal service. The so-called notice of opposition filed 06/27/2014 is ordered stricken because it is filed with such caption and because it is nonsensical. Plaintiff is ordered not to file any document indicating that the document is captioned with information about the paralegal service in the caption – so long as plaintiff is self-represented, she is required to state her name and address and telephone number and that fact that she is self-represented on the caption of each document filed.

All prior proofs of service filed in this case are defective and are ordered stricken. Plaintiff is ordered to file an amendment to the Complaint on form CIV 105 clearly identifying the defendant who is being sued and then a valid proof of service indicating that the defendant was served by 09/19/2014 or the court will impose further sanctions of $50. This order is made pursuant to CRC 2.30 for violation of CRC 3.110. Further OSC regarding dismissal and sanctions pursuant to CCP §§575.2, 583.150, and 581(m) as well as CRC 2.30 for violation of 3.110 is set for hearing on 09/25/2014 at 8:30 a.m. in Dept. 46.

IT IS SO ORDERED:

Frederick C. Shaller, Judge

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Conference-Case Management

Jury fees were posted on 2/28/2014. Matter to be set for jury trial on 07/15/2015 at 9:30 a.m. and a final status conference on 6/30/2015 at 8:30 a.m.

If the parties agree to mediation: The court orders the parties to select a mutually agreeable mediator by 1/9/2015, complete mediation by 5/15/2015 and then return to court for post-mediation conference on 5/18/2015 at 8:30 a.m. in Dept. 46.

The parties are to comply with the CMC order which is issued separately.

This ruling and the CMC order are posted on-line. No appearance is necessary if, after meeting and conferring regarding the tentative ruling, the parties both agree to the dates and times set for trial, the parties waive further notice of this trial, and one party calls the court and informs the court that the parties agree and that both parties waive notice.

IT IS SO ORDERED:

______________________________
Frederick C. Shaller, Judge

CASE MANAGEMENT ORDER

Trial and Final Status Conference

Jury trial is set for 07/15/2015 at 9:30 a.m.

Final status conference is set for 6/30/2015 at 8:30 a.m.

Jury Instructions and Verdict Form

The Court settles jury instruction and the verdict form at the Final Status Conference. A jury panel will not be ordered until the instructions and verdict form are settled.
Counsel and self-represented parties with authority to agree on jury instructions and the verdict form shall meet and confer in person within thirty (30) days of the Final Status Conference regarding jury instructions and a special verdict form with interrogatories. All counsel and self-represented parties shall bring to that meeting their requested jury instructions and special verdict form with interrogatories.
As required by LASC Local Rule 3.25(g)(7), counsel and self-represented parties shall present at the Final Status Conference one joint set of agreed jury instructions, one joint set of disputed jury instructions and one joint agreed special verdict with interrogatories. Jury instructions must be formatted as required by Cal. Rules of Court (CRC) 2.1055.
Any disputed jury instructions that is not a form instruction as approved by BAJI or CACI shall contain a citation to the case in support of the instruction with a page citation to the portion of the case that supports the instruction. If federal or out-of-state citations are included, a copy of the entire case must be lodged with the court in accordance with CRC 3.1113(i).

Motions in Limine

Motions in limine shall be noticed pursuant to CCP §1005(b) to be hear at the Final Status Conference and shall comply with LASC Rules 3.25(g)(2) and 3.57.

Counsel shall seek and obtain from the Court an alternate briefing schedule if it is not possible to notice a motion in limine for the Final Status Conference on 16 days notice, such as motions in limine regarding expert witnesses.

Witness and Exhibit Lists

Witness and exhibits lists shall be filed and served in compliance with LASC Local Rule 3.25(f)(1).

Alternative Dispute Resolution

If the parties agree to mediation: The court orders the parties to select a mutually agreeable mediator by 1/9/2015, complete mediation by 5/15/2015 and then return to court for post-mediation conference on 5/18/2015 at 8:30 a.m. in Dept. 46.
All parties including persons with authority to settle, and lead trial counsel shall be physically present at the mediation. Insurance claims representatives assigned to the file and located in California shall be physically present. Insurance claims representatives assigned to the file and located outside California shall be available by telephone during the entire mediation.
Counsel participating in any form of alternative dispute resolution shall comply with CRC 3.1380(b). The mediator has no authority to make any exceptions to this order.

Motions

Objections to evidence filed in connection with any motion shall be in the format required by CRC 3.1354(b). Counsel shall lodge a proposed order on objections in the format specified in CRC 3.1354(c). Objections must be filed and proposed orders lodged at the time of the opposition or reply brief or objections will be waived.
All citations to federal or out of state authorities shall be accompanied by lodged out of state authorities in the format specified by CRC 3.1113(i).
No more than one (1) summary judgment/adjudication to be filed per party.

Trial

On the first date of trial, all counsel and self-represented parties will bring to court five sets of three ring binders containing exhibits. Exhibits must be sequentially numbered, starting from the number 1, on the lower right side of each page.
Counsel and self-represented parties are to assign trial exhibit numbers so there are no duplicate exhibit numbers.
Counsel and self-represented parties are ordered to meet and confer so that exhibits not in dispute can be admitted at the beginning of each party’s case.
Counsel and, where applicable, parties and witnesses, shall comply with LASC Local Rules 3.70 – 3.193.

IT IS SO ORDERED:

Dated: _______________________________
FREDERICK C. SHALLER
Judge of the Superior Court