Defendant City of San Juan Capistrano moves for leave to file a cross-complaint against Defendant County of Orange pursuant to Code of Civil Procedure section 428.50.
A defendant may file a permissive cross- complaint if the cause of action asserted: “(1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.” (Code Civ. Proc., § 428.10(b).) If such a cross-complaint is not filed at the same time as the defendant’s answer or before the court sets the first trial date, leave to file is required. (Id. § 428.50(a)- (b).) Leave to file may be granted “in the interest of justice at any time during the course of the action.” (Id. § 428.50(c).)
This action concerns a trip and fall over a vacant tree well, with Plaintiff alleging that Defendants left their property in a dangerous condition. The City’s proposed cross-complaint Defendants argue that mailing an envelope addressed to Sohrab Rowshan, Marriage & Family Therapy at 3419 Via Lido #443, Newport Beach, CA 92663 on 10/3/2023 was not sufficient to confer this Court’s jurisdiction over Defendant Sohrab Rowshan or Defendant NEWPORT BUSINESS CONSULTING INC.
Notably, while defense attorney George C. Hutchinson declares, “I have attached hereto and incorporate herein as Exhibit (2) a true and correct copy of the envelope and its contents,” Exhibit 2 does not have any exhibits attached to it. Therefore, evidence of the allegedly defective service of the summons and complaint does not appear to be before the Court. Indeed, no proof of services were ever filed by Plaintiff for the 10/3/2023 service of the summons and complaint.
Nevertheless, “When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove … the facts requisite to an effective service.” [Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413, (internal quotes omitted); see Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163.]
Here, Plaintiff’s opposition is silent as to the 10/3/2023 service attempt. That is, the opposition makes no argument regarding the service upon which the motion is based.
Instead, Plaintiff argues that service was completed on 10/11/2023. Indeed, the only proof of service for the summons and compliant for moving defendants in the Court’s file are ROAS 13 and 15, which indicate a 10/11/2023 service date (and by personal service).
Therefore, it appears the motion is MOOT. Moving Parties’ request for expenses and attorney’s fees incurred in making this motion is DENIED, as Moving Parties failed to cite to any authority for the requested relief.
The answer or responsive pleading is to be filed within 15 days.
The Case Management Conference is continued to 9/19/2024 at 1:30 p.m.