2013-00152860-CU-OE

Taron Young vs. City of Sacramento

Nature of Proceeding: Motion to Quash Service of Summons

Filed By: Rogan, Kathleen T.

Defendant City of Sacramento’s (“City”) motion to quash service of summons is
GRANTED.

Plaintiffs Taron and Julie Young (“Plaintiffs”) purported to effect service of process in
this matter by delivering a copy of the summons to Supervising Deputy City Attorney
Kathleen Rogan (“Rogan”). The City argues that such service was ineffective because
it did not comply with CCP § 416.50. That section, which governs service upon
municipalities and other public entities, requires service to be made upon the entity’s
“clerk, secretary, president, presiding officer, or other head of its governing body.”
Neither a deputy city attorney nor the Sacramento City Attorney himself occupies any
of these positions, and thus Plaintiffs’ service was ineffective. The fact that a Sacramento ordinance designates the City Attorney to be appointed by the City
Council, and indicates that the City Attorney shall serve as counsel to the City
government and officers, does not alter the court’s conclusion.

Plaintiffs counter with three arguments that the court rejects. First, Plaintiffs argue
that, because the Sacramento City Attorney is listed on the Roster of Public Agencies
maintained by the California Secretary of State, they effected valid service of
summons when they served Rogan. Pursuant to Government Code § 960.8, a plaintiff
may effect service on a “public agency” by serving the persons listed in the Roster.
However, the City is not a public agency within the meaning of Government Code §
960.8. (See Cal. Gov’t Code §§ 960.2 and 53050 [“The term ‘public agency’…does
not include… a…city”] [ellipses added].) Thus, the City Attorney’s appearance on the
Roster of Public Agencies does not assist Plaintiffs.

Next, Plaintiffs argue that they effected valid service of summons because the City
Attorney’s Office is the City’s ostensible agent. As Plaintiffs note, CCP § 416.90
allows a summons to be served on “a person not otherwise specified in this article” by
delivering a copy to an authorized agent. The Judicial Comment to § 416.90 clarifies
that that section only applies in circumstances not covered under CCP §§ 416.10
through 416.80. Because CCP § 416.50 covers service upon public entities, § 416.90
does not apply. (See Warner Bros. Records, Inc. v. Golden West Music Sales (1974)
36 Cal.App.3d 1012, 1016 [“Although the capacities of defendants K & M Duplicating
and Gemini Tapes Co. is not indicated…it is apparent that such defendants are not
individuals, but are business entities of a type specified in the sections other than
section 416.90.[..h]ence, they are not persons ‘not otherwise specified,’ and they may
not be served pursuant to section 416.90”] [ellipses and brackets added]; accord
Ogundimo v. Steadfast Prop. & Dev. (E.D. Cal., Sept. 28, 2010) 2010 U.S. Dist. LEXIS
107791, at *7-8, fn. 7 [CCP § 416.90 applied because defendant was not “a minor, a
ward or conservatee, a political candidate, a public entity, a corporation, or an
association” described in CCP §§ 416.10 through 416.80].) In reaching this
conclusion, the court is aware of and has reviewed the cases cited in Plaintiffs’
opposition. Because those cases did not involve service on a public entity, they are
inapposite.

Finally, Plaintiffs argue that they effected valid service because the service resulted in
actual notice to the City. Assuming Plaintiffs’ argument is factually correct, i.e., the
City acquired actual notice of the lawsuit, it is unavailing nonetheless. Absent service
of process by a legally prescribed method, a defendant’s actual notice of a lawsuit
does not render the service valid. (See American Express Centurion Bank v. Zara
th
(2011) 199 Cal.App.4 383, 392.)

The motion is GRANTED.

The City’s further request for monetary sanctions pursuant to CCP § 128.5 is DENIED.
That section only governs motions filed before 1995. Furthermore, even if the court
were to construe the request for sanctions as being made under CCP § 128.7, the
court would deny the motion because the City did not make the request in a separate
motion or comply with the safe-harbor notice provision at CCP § 128.7(c)(1).