Caroline Geitner v. Tia Sonesouphab et al

B. LEGAL STANDARD

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” (§ 437c, subd. (h).)

“Given the high stakes involved in motions for summary judgment and summary adjudication, continuances under Code Civ. Proc., § 437c, subd. (h), are virtually mandated upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion. The affidavit is required to show that (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain or discover these facts.” (Braganza v. Albertson’s LLC (2021) 67 Cal.App.5th 144, 152. Internal quotations and citations omitted.)

C. DISCUSSION

Here, Plaintiff’s ex parte application was timely filed prior to the date the opposition to the MSJ is due. Moreover, Plaintiff submits a declaration making the required showing under Braganza. (See Declarations of Brooke C. Bellah, filed 6/1/26, ¶¶ 4-5, 7-17, and filed 6/12/26, ¶¶ 6-12.) Further support for Plaintiff’s requested relief comes from the facts that a two-month continuance of the hearing date is minimal, and trial is more than seven months away.

In Opposition, Defendants argue that Plaintiff’s dilatory discovery conduct has created the emergency she now finds herself in regarding the need for depositions. Defendants also contend they would be prejudiced by a continuance. Defendants submit no evidence of prejudice, and their argument is not based on any individualized prejudice, but rather on general principles underlying MSJs. (See Opposition, 9:28-10:3 [“A continuance would: undermine the purpose of summary judgment to streamline litigation, extend the pendency of claims lack merit, and reward Plaintiff’s lack of diligence.”].)

In light of Plaintiff’s affirmative showing, and the policy that “[c]ontinuance requests under § 437c, subd. (h), are to be liberally granted,” the request to continue the MSJ hearing is GRANTED. (Braganza, supra, 67 Cal.App.5th at 152.)

Angelica Hernandez v. Estate of Jack Malan et al 25CV002200

SPECIALLY APPEARING DEFENDANT CHRIS MALAN’S MOTION TO QUASH SERVICE OF SUMMONS

TENTATIVE RULING: The motion is DENIED. Defendant is granted 15 days’ leave to respond to the Complaint. (Code Civ. Proc., § 418.10, subd. (b).)

Specially appearing Defendant Chris Malan (“Defendant”) moves, pursuant to Code of Civil Procedure section 418.10, 2 to quash service of summons on the ground that service has not been completed in compliance with California statutory requirements and the Court therefore lacks personal jurisdiction.

Defendant does not dispute that she is a proper party to this action in her capacity as an individual, successor in interest to Jack Malan, and as successor trustee of the Malan Family Trust. She contends that service on her, in all capacities, is defective. Defendant argues that the summons and complaint were served on her adult son at the property address, but that substituted service is not complete because Defendant has not yet received a copy of the summons and complaint by mail at the residence where the documents were left. (Mem., 4:24-27, citing § 415.20, subd. (b).)

“A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served.” (§ 415.10.) “A summons may be served on a person ... by delivering a copy of the summons and of the complaint to such person or to a person authorized by him to receive service of process.” (§ 416.90.) Stated differently, if the person to be served authorizes another person to receive service of process on his/her behalf, then personal service of a summons and complaint on that authorized person is deemed personal service on the actual person to be served. (§§ 415.10, 416.90.) Such service is not a form of substituted service under section 415.20.

The authorization to receive service of process under section 416.90 can be by law or by appointment. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.) A specific appointment is not required; the authority of the agent to receive service of process may be inferred or implied, but the principal-agent relationship must be sufficiently close and enduring to make it highly probable the person to be served will receive actual notice. (Warner Bros. Records, Inc. v. Golden West Music Sales (1974) 36 Cal.App.3d 1012, 1017.)

Although there is no opposition by Plaintiff on file, the filing of a proof of service declaration ordinarily creates a rebuttable presumption that the service was proper. (Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163.)

The Proofs of Service (“POS”) demonstrate that a “Mica Malan, authorized to accept service of process” was personally served. (5/18/26 and 5/26/26 POSes.) Both POSes delineate the service as “personal service” on Defendant, and not as substituted service. (Ibid.) Neither POS indicates that any papers were mailed to Defendant at the address at which her son was 2 All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.

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