2014-00156358-CU-EI

City of Sacramento vs. State of California PERS

Nature of Proceeding: Motion for Order for Prejudgment Possession

Filed By: Skinner, David W.

On the Court’s own motion, this matter is continued to March 19, 2014 at 9:00
a.m. in this department.

The Court has granted the Trustee’s motion to quash and directed the City to re-serve
a copy of the summons and complaint on the Trustee by March 13, 2014.

Given that the Trustee has opposed the instant motion on the merits, the Trustee has
waived any defects or irregularities in the notice of motion. “This rule applies even
when no notice was given at all.” (Reedy v. Bussell (2007) 148 Cal.App.4th 1272,
1288 [internal citations and quotations omitted].) Additionally, the Trustee has not
identified any prejudice based on improper notice. (Id.) Neither will failure to give
notice deprive the Trustee of its rights to procedural due process because the Trustee
has an opportunity to be heard, and is opposing, the City’s motion. (See Israni v.
Superior Court (2001) 88 Cal.App.4th 621, 633.)

2014-00156358-CU-EI

City of Sacramento vs. State of California PERS

Nature of Proceeding: Motion to Quash Service of Summons

Filed By: Speir, George B.

Specially appearing Defendant U.S. Bank National Association, as Trustee, successor-
in-interest to Bank of America National Association, as Trustee, successor by merger
to LaSalle Bank National Association, as Trustee, for the Certificate Holders of Bear
Stearns Commercial Mortgage Securities, Inc. Commercial Mortgage Pass-Through
Certificates, Series 2002-TOP8’s (“Trustee”) motion to quash service of summons is
GRANTED.

This is an action for eminent domain by the City of Sacramento (“City”) for the property
at 600 K Street for the proposed sports arena for the Sacramento Kings.

The Trust argues that it has never been properly served with the summons or
complaint because the City never served the summons and complaint on U.S. Bank in
its representative capacity as trustee.

The proofs of service on file with the Court indicate the following. On January 9, 2014,
the City served “U.S. Bank National Association” by serving “Michael Murphy – Branch
Manager – Authorized to accept service on behalf of U.S. Bank National Association.”
Thus, on January 9, 2014, the Trustee had not been served in its capacity as Trustee.

On January 27, 2014, the City filed a Doe Amendment to the complaint, substituting
the Trust as Doe 1. The proof of service indicates that on January 27, 2014, the City
served “U.S. Bank National Association, as Trustee, successor-in-interest to Bank of
America National Association, as Trustee, successor by merger to LaSalle Bank
National Association, as Trustee, for the Certificate Holders of Bear Stearns
Commercial Mortgage Securities Inc., Commercial Code Mortgage Pass-Through
Certificates, Series 2002-TOP8.” (See Proof of Service filed with the Court on
February 3, 2014.) The documents served included the Summons, Complaint – Action
in Eminent Domain, and Doe Amendment to Complaint Substituting the True Name for
Doe Number One (1). (Id. [emphasis added].) The documents were served on
“Michael Murphy – Branch Manager – Authorized to accept service on behalf of U.S.
Bank National Association.”

The Court notes that while the proof of service states that the documents were served
on “U.S. Bank National Association, as Trustee….”, the summons that was served on
January 27, 2014 demonstrates otherwise. The summons that was served on January
27, 2014 was a copy of the original summons that was served before the Trustee was
named as a Doe Defendant. The original summons named “U.S. National Bank
Association”, it did not name U.S. National Bank Association, as Trustee. Moreover, in
the original summons the box which stated that the person being served “as the
person being served under the fictitious name of ….” was not checked. In the original
summons the box which stated that Mr. Murphy was being served on behalf of a
corporation was also not checked. Failure to Identify that the Trustee was being Served under a Fictitious Name

CCP §474 provides, in pertinent part,

that no default or default judgment shall be entered against a defendant
so designated, unless it appears that the copy of the summons or other
process, or, if there be no summons or process, the copy of the first
pleading or notice served upon such defendant bore on the face thereof
a notice stating in substance: “To the person served: You are hereby
served in the within action (or proceedings) as (or on behalf of) the
person sued under the fictitious name of (designating it).” The certificate
or affidavit of service must state the fictitious name under which such
defendant was served and the fact that notice of identity was given by
endorsement upon the document served as required by this section.

(CCP §474.) This section is mandatory, not directory. (Armstrong v. Superior Court
(1956) 144 Cal.App.2d 420. In Armstrong , a defendant initially sued as a Doe
defendant was served with summons and complaint. The summons, however, did not
bear the endorsement required by section 474 that he had been served as one of the
fictitious defendants. The appellate court held that this omission was fatal, concluding
that that section 474 “is not directory but mandatory, and its effect is to deprive the
court of the right to proceed against a defendant served with such a defective
summons.” (Id. at 424.)

“A summons is the process by which a court acquires personal jurisdiction over a
defendant in a civil action and a defendant has an absolute right to demand that
process be issued against him in a manner prescribed by law. (Carol Gilbert, Inc. v.
Haller (2009) 179 Cal. App. 4th 852, 861 [internal citation omitted].) “The form of a
summons is prescribed by law, and this form must be substantially observed. Service
of a substantially defective summons does not confer jurisdiction over a party and will
not support a default judgment. Notice of the litigation does not confer personal
jurisdiction absent substantial compliance with the statutory requirements for service of
summons. (Id.)

Serving a copy of the amendment substituting the true name for the fictitious name
does not cure the defect. “Where a writ or summons is served, the notice must appear
in that document, and its appearance in some other document will not comply with the
statute.” (Carol Gilbert, Inc., supra, 179 Cal App 4th 852, 853.)

Failure to Specify that the Person is Being Served on Behalf of a Corporation

When serving an agent on behalf of corporation,

the copy of the summons that is served shall contain a notice stating in
substance: “To the person served: You are hereby served in the within
action (or special proceeding) on behalf of (here state the name of the
corporation or the unincorporated association) as a person upon whom a
copy of the summons and of the complaint may be delivered to effect
service on said party under the provisions of (here state appropriate
provisions of Chapter 4 (commencing with Section 413.10) of the Code
of Civil Procedure). (CCP §412.30.) “The requirements of CCP §412.30 are mandatory so that service
upon a corporation of a purported summons which fails to comply substantially with the
section is ineffective.” (Schering Corp. v. Superior Court (1975) 52 Cal.App.3d 737,
741 [finding that the process server’s oral statement to the person served that service
was on behalf of the corporation as a Doe did not cure the defects in the summons].)

Conclusion

Here, the summons served on January 27, 2014 wholly failed to comply with CCP
§474 and the defective summons did not confer jurisdiction over the Trustee. First, the
Trustee is not named in the summons. Second, the summons fails to identify that the
Trustee is being served as a fictitious name. Third, the summons fails to specify that
the person served is being served on behalf of a “corporation, association or
partnership, or other entity (e.g. a Trustee).”

Given the above deficiencies, the motion is GRANTED.

The City is directed to re-serve a copy of the summons (in compliance with the above)
and complaint on the Trustee by no later than March 13, 2014. The City shall file a
proof of service of the summons, including a copy of the summons served, by no later
than March 14, 2014.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

The notice of motion does not provide notice of the Court’s tentative ruling system, as
required by Local Rule 1.06(A). The Trust’s counsel is directed to contact Plaintiff’s
counsel forthwith and advise counsel of Local Rule 1.06 and the Court’s tentative
ruling procedure. If the Trust’s counsel is unable to contact Plaintiff’s counsel prior to
hearing, the Trust’s counsel shall be available at the hearing, in person or by
telephone, in the event opposing party appears without following the procedures set
forth in Local Rule 1.06(A).