Case Number: BC559105    Hearing Date: January 05, 2015    Dept: 34

Moving Party: Defendant Wolf Magazine, Inc. (“defendant” or “Wolf”)

Resp. Party: Plaintiffs Porsche Thomas and Keshia Shabazz (“plaintiffs”)

Defendant’s motion to quash service of summons is GRANTED.

PRELIMINARY COMMENTS:

Plaintiffs have not complied with California Rules of Court, Rule 3.1110(f). Although the Court has accepted and considered Plaintiff’s opposition, the Court would appreciate the parties complying with the CRC in all future pleadings.

Plaintiffs state that Exhibit 1 is the proof of service filed with the Court. (Opp., p. 2:10-12.) Not so. Exh. 1 is the Summons, Civil Cover Sheet, receipt for the filing fee, and the cover page of the Complaint; nowhere in Exh. 1 is the Proof of Service.

Both plaintiffs and defendant request sanctions under Code of Civil Procedure section 128.5. Both plaintiffs’ counsel and Defendant’s counsel are almost two decades late in making this request. Section 128.5 is not effective as to cases filed after January 1, 1995. (Clark v. Optical Coating Lab. (2008) 165 Cal.App.4th 150, 164.) The California Legislature intended for Code of Civil Procedure section 128.7 to apply to actions filed after December 31, 1994, instead of section 128.5. (Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 815.) Neither party has made a proper request for sanctions under section 128.7. (See Code Civ. Proc., § 128.7(c)(1) [request for sanctions must be made in a separate motion and the moving party must comply with the 21-day safe harbor provision].)

The Court will expect a greater level of professionalism from all counsel in future pleadings and appearances before this Court.

Finally, the Court notes that plaintiffs’ opposition was submitted and signed by Kevin A. Landau, a New York attorney. Mr. Landau appears to concede that he is not a member of the California State Bar because the motion states “pro hac vice application forthcoming.” (See Opp., p. 1.) As of the posting of this tentative decision on Dec. 26, 2014, no application to appear pro hac vice has been filed or granted in this action. Other than where a court consents or authorizes an out-of-state attorney to appear in an action, local practice by such an attorney is prohibited. (See 1 Witkin, Cal. Proc. (5th ed. 2008) Attys, § 387, p. 498. See also Bus. & Prof. Code, § 6125 [“No person shall practice law in California unless the person is an active member of the State Bar”].) The Court is concerned that plaintiffs’ counsel is engaging in the unauthorized practice of law in California.

BACKGROUND:

Plaintiffs commenced this action on 9/29/14 against defendants Steven Bigler and Wolf Magazine Inc. for: (1) invasion of privacy (appropriation of likeness); (2) statutory misappropriation; and (3) IIED. Plaintiffs allege that in May 2010 defendant Bigler took photographs of them, and that they did not consent to publicize the photos. (Compl., ¶¶ 24-25.) Despite this, Bigler sold nude images of plaintiffs to defendant Wolf without obtaining a written release or authorization from plaintiffs. (Id., ¶ 26.) Wolf thereafter published and distributed the photos without obtaining written authorization. (Id., ¶ 27.) Wolf continues to sell and distribute the photos despite receiving a cease and desist letter from plaintiff’s counsel. (Id., ¶¶ 34, 39.)

ANALYSIS:

Defendant argues that it was not properly served with the complaint or summons. Complainants have the initial burden to evidence valid statutory service of a summons and complaint. (Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439 40; Floveyor Internat. v. Sup. Ct. (1997) 59 Cal.App.4th 789, 794; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2008) ¶ 4:428.) ” ‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction.’ ” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) A filed proof of service creates a rebuttable presumption that service was proper, if it complies with applicable statutory requirements. (Floveyor Internat. v. Sup. Ct. (1997) 59 Cal.App.4th 789, 795.)

The proof of service filed in this action states that the summons and complaint were served by personal service on defendant by serving the documents to “Ismael Hernandez / Receiving.” Where the defendant is a corporation, service may be effected by serving a copy of the summons and complaint to the corporation’s designated agent for service of process, president, CEO, other head of the corporation, vice president, secretary, assistant secretary, treasurer, assistant treasurer, controller, CFO, general manager, or a person authorized by the corporation to receive service of process. (Code Civ. Proc., § 416.10(a), (b).)

Defendant provides sufficient evidence to support its argument that Ismael Hernandez was not a proper person upon which to personally serve defendant. The agent for service of process for defendant is Jarred Land. (Land Decl., ¶ 5.) Land declares that no attempt was made to serve him at the address for service of process. (Ibid.) Hernandez declares that he is an employee of RED Studios Hollywood, LLC. (Hernandez Decl., ¶ 2.) Among Hernandez’s responsibilities are to receive packages delivered to certain buildings and tenants at RED. (Id., ¶ 2.) Hernandez declares that, when he accepted the package from the process server, the server did not ask if he worked for Wolf or if he was authorized to accept packages for Wolf. (Id., ¶ 3.) Hernandez took the package and gave it to Lia Griest. (Ibid.) RED is a studio production location where productions rent space for their shoots. (Land Decl., ¶ 3.) RED does not own or operate Wolf, and Wolf merely rents some office space that it uses at RED. (Id., ¶ 4.)

The Court rejects plaintiffs’ argument that defendant has admitted to proof of service. Plaintiffs are correct that proof of service may be made by a written admission of the party. (Code Civ. Proc., § 417.10(d).) However, plaintiffs fail to show that defendant made such an admission. Plaintiffs point to an e-mail from defense counsel which states, in relevant part:

“I understand that your clients decided to file a lawsuit against Wolf. My office will continue to represent Wolf in the litigation. We should get together and chat about it when you have time. Please let me know your availability.” (Pl. Exh. 2.)

This email does not constitute the admission that plaintiffs’ wish.
This email simply states that Wolf’s counsel is aware that plaintiffs have “decided to file a lawsuit against Wolf.” At to point does defense counsel admit that defendant was served with a summons. Indeed, service is never mentioned in the e-mail. Therefore, plaintiffs fail to show that defendant made a written admission as to service.

The Court also rejects plaintiffs’ argument that service was proper because Hernandez admits that he gave the summons to Lia Griest. Plaintiffs present evidence that Griest is the Director of Finance at Wolf. (See Pl. Exh. 4.) However, plaintiffs provide no authority which holds that service on a person who is not authorized to receive personal service on behalf of a corporation is nonetheless proper where that person then gives the summons and complaint to a corporate employee.

Under plaintiff’s argument, service could be effectuated on a corporation if the process server gives the summons and complaint to person A, who gives the documents to person B, who then gives them to person C, who then delivers them to a corporate officer. This is not permitted under the Code.

The Court rejects plaintiffs’ argument that section 416.10 was satisfied because Hernandez’s job at RED was to receive packages. Plaintiffs have no evidence or authority showing that a different corporation’s employee’s receipt of packages for the defendant is enough to impliedly authorize that person to accept or receive service of process. The cases cited by plaintiffs do not support their argument because in those cases there appeared to have been no dispute that the person served was an employee of the defendant corporation. (See Gibble v. Car-Lene Research Inc. (1998) 67 Cal.App.4th 295; Khachatryan v. Toyota Motor Sales, U.S.A., Inc. (C.D. Cal. 2008) 578 F.Supp.2d 1224.)

Plaintiffs are incorrect that defendant has made a general appearance by discussing discovery issues. “A general appearance occurs where a party, either directly or through counsel, participates in an action in some manner which recognizes the authority of the court to proceed. It does not require any formal or technical act.” (Mansour v. Sup. Ct. (1995) 38 Cal.App.4th 1750, 1756-1757. Accord Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1153.) “In general, propounding discovery constitutes a general appearance.” (Factor Health Management, LLC v. Superior Court (2005) 132 Cal.App.4th 246, 250.) There is no showing that defendant has propounded discovery in this action. Instead, it is plaintiffs that have served written discovery. It appears that defendant’s only response to the discovery has been to point out that plaintiffs’ service of discovery is improper because proper service of summons was never made. (See Pl. Exh. 7, Def. Motion, p. 8.) Such conduct does not recognize the authority of the Court to proceed; indeed, it supports defendant’s argument that this Court has not yet obtained jurisdiction over it.

Defendant has filed a motion to quash service of summons and complaint, not a motion to stay discovery. Plaintiffs have not filed a motion to compel discovery, despite their rhetoric in asking the court to impose sanctions for defendant’s failure to comply with discovery. (See Opp., p. 10:14-23.) However, to avoid further unneeded law and motion practice, the Court notes that, since there as been no service of the summons and complaint, plaintiffs’ service of written discovery is premature and defendant need not respond. Unless leave of court is granted, interrogatories and requests for admissions may only be propounded at least 10 days after service of the summons on the responding party. (See Code Civ. Proc., §§ 2030.020(a), (b); 2033.020 (a), (b).) Therefore, plaintiffs’ argument that it may now move for relief for failure to respond to the discovery is not well taken.

Defendant’s motion is GRANTED.