JAMES WALD, et al. vs TRAVIS EDWARD MARTIN, et al.

(2) Travis’s motion to dismiss is DENIED.

(3) Cross-Defendants’ motion to strike the FACC in its entirety is GRANTED, without leave to amend. This is without prejudice to Travis’s ability to file a noticed motion for leave to amend.

(4) Cross-Defendants’ demurrer to the FACC has been rendered moot by the order granting the motion to strike. Therefore, the demurrer will be taken off-calendar.

Plaintiff is to give notice within two (2) court days.

Discussion:

I. Plaintiffs Motion to Deem Service Complete on Defendant Airlink

To begin, Plaintiffs’ request for contempt sanctions is summarily denied for failure to file a separate noticed motion for contempt sanctions. (See CCP, § 128.7, subd. (c).) This does not affect their request for an award of fees and costs under CCP section 415.30.

Next, the Court will deem service complete on Airlink if Plaintiffs show substantial compliance with the service by mail statute, and actual notice to Airlink.

Substantial compliance—not strict compliance—with the service statutes is required, and the provisions should be liberally construed to uphold jurisdiction if the defendant received actual notice. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544–545.) “[A] finding of substantial compliance can only be sustained where (1) the record shows partial or colorable compliance with the requirement on which the objection is predicated; (2) the service relied upon by the plaintiff imparted actual notice to the defendant that the suit was pending and that he was bound to defend; and (3) the manner and objective circumstances of service were such as to make it highly likely that it would impart such notice.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 391.)

When the defendant is a business entity, substantial compliance requires evidence of actual delivery to or receipt by the person(s) who may accept service for the entity under CCP sections 416.10-416.40. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1437.)

Service has been found to be proper and in substantial compliance—despite a refusal to accept service—when the process server identified himself/herself, informed the person to be served that he/she is being served with process, and left the papers as close as possible to the person. (See Trujillo v. Trujillo (1945) 71 Cal.App.2d 257, 260-61.)

Substantial Compliance: Here, the record shows partial or colorable compliance with the requirements of the service by mail statute. The only errors with the service are limited to immaterial errors by prison staff. The first element has been met.

2023CUPP012195: JAMES WALD, et al. vs TRAVIS EDWARD MARTIN, et al.

Actual Notice: Plaintiffs have shown that Airlink has actual notice of the action and the pleadings. This is readily apparent by the fact that its agent for service of process has participated in two motions involving efforts to serve Airlink, as well as Travis’s own involvement in the case as a whole.

The service relied on did result in actual notice to Airlink, via its agent for service of process, as stated above. The second element has been met.

The Manner and Objective Circumstances of Service: The manner and objective circumstances of service were such as to make it highly likely that it would impart such notice, especially given Plaintiffs’ counsel’s correspondence with the prison Litigation Coordinator. The third element has been met.

In sum, Plaintiffs have shown substantial compliance with the service by mail statute. It would be unjust to allow Travis’s failure (or refusal) to return the notice and acknowledgment of receipt form—despite discussions and his representations to the Court at the prior hearing on 12/16/25, and the fact that he received all of the papers being served on Airlink—to prevent service on Airlink. The Court therefore will exercise its inherent, equitable powers to deem complete service by mail on Airlink. (CCP, § 128, subd. (a)(3)-(5).)

Travis’s Other Arguments: Travis’s ongoing assertion that CDCR regulations and a “no-contact order” prevent him from participating in litigation lacks merit. This issue has previously been raised and rejected and, as is discussed below, is no longer an issue. More importantly, this assertion does not justify Travis’s failure to accept service as ordered—and as he agreed he would on the Court record at the hearing on 12/16/25—after the Court denied his motion for a protective order. Specifically, at the hearing on 12/16/25 regarding Travis’s motion for a protective order prohibiting Plaintiffs from serving Airlink by delivering papers to him, as the self-designated agent for service of process on Airlink, while incarcerated, Travis stated on the record, he agreed to accept service on behalf of Airlink at the mailing address of 1746-F S. Victoria Avenue, Unit 104, Ventura, CA 93003.

Fees & Costs: The Court finds that Plaintiffs are entitled to recover their costs pursuant to CCP section 415.30, subdivision (d). Airlink (via its agent for service of process, Travis) failed to timely return the notice and acknowledgement of receipt form. As a result, Plaintiffs needed to file this motion—which is an attempt to serve Airlink by mail, by virtue of substantial compliance with the mailing statutes and actual notice to Airlink—and incurred fees and costs. CCP section 415.30 allows for the recovery of reasonable expenses incurred in serving or attempting to serve by another method.

However, there is no provision for attorney fees under this section. Here, the Declaration of Ms. Krem states Plaintiffs incurred a filing fee of $60.00 for bringing this motion. No other expenses or costs are listed. The Court will award the $60.00 in costs as reasonable expenses incurred in conjunction with attempting service via an alternative method, by having to bring this motion.

II. Motion by Defendant/Cross-Complainant Travis Martin to Dismiss for Failure to Prosecute

2023CUPP012195: JAMES WALD, et al. vs TRAVIS EDWARD MARTIN, et al.

Travis seeks to either dismiss Plaintiffs’ case, order Plaintiffs to direct CDCR to lift communication restrictions, or disqualify Plaintiffs’ counsel. The basis for the motion is that an unconstitutional no contact order imposed by CDCR has thwarted his efforts to participate in litigation and pre-trial discovery, and neither Plaintiffs nor the Court have directed CDCR to lift the restriction.

Travis’s motion lacks merit. The CDCR has confirmed that the communications restrictions expired on 10/17/25. In the reply, Travis insists that the 30-day suspension of privileges was only one of two restrictions imposed, and the second restriction was an ongoing no contact directive. Travis’s evidence in reply does not show that he received two separate categories of consequences. The CDCR document only includes the suspension of privileges in the “disposition” section. The additional information is simply repeating an admonishment that was delivered to Travis at the hearing.

The admonishment was to cease contact with the attorneys and the victim’s family, and if the behavior continues, “he will be held accountable for his options.” The document further states that the attorneys did not agree to receive electronic service, and Travis was instructed to communicate through the court personnel. The communication from CDCR dated 3/17/26 clearly states that counsel is free “to communicate with MARTIN, TRAVIS at your discretion.” As such, his ability to participate in litigation and discovery has not been limited.

Second, Travis cites no legal authority to support the proposition that a trial court properly exercises its discretion to dismiss a case under the 2-year statute under the facts presented here. To the extent he complains that Plaintiffs and the Court did not intervene to require CDCR to lift the restrictions, Travis submits no evidence that Plaintiffs (or, for that matter, the Court) have such authority over CDCR. Travis’s failure to prosecute arguments lack merit.

Third, some of the requested relief is an attempt to seek reconsideration of his prior motions to disqualify counsel and order CDCR to lift the restrictions, which were denied in December 2025. Such motions must comply with CCP section 1008. (CCP, § 1008, subd. (e).) That statute requires, amongst other things, a declaration showing new or different facts circumstances or law, and for the motion to be filed within 10 days of service of the notice of entry of order. (CCP, § 1008, subd. (a).) Travis’s motion was untimely filed, and it is not supported by a declaration of new or different facts, circumstances, or law.

In sum, Travis’s motion is DENIED.

III. Motion by Cross-Defendants to Strike Travis’s FACC

Pursuant to CCP section 472, subdivision (a), Cross-Defendants move to strike the FACC that was filed on 4/7/26, on the grounds that it was improperly filed without leave to amend, and Travis failed to file a noticed motion for leave to amend as ordered by the Court on 2/2/26.

The Court will consider any untimely papers.

Cross-Defendants argue that the FACC should be stricken in its entirety because the time for Travis to amend once as a matter of right expired, and Travis did not obtain leave to amend by following the Court’s order on 2/2/26, which required a noticed motion.

2023CUPP012195: JAMES WALD, et al. vs TRAVIS EDWARD MARTIN, et al.

CCP Section 472:

A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.

(CCP, § 472, subd. (a).)

In other words, a party may amend its pleading once as a matter of right, without leave of court, under three circumstances:

(1) No answer, demurrer, or motion to strike has been filed. (2) A demurrer or motion to strike has been filed, but the amended pleading is filed before the date when the opposition to the demurrer or motion to strike is due. (3) By stipulation of the parties.

Cross-Defendants are correct Travis cannot rely on CCP 472 to amend without first obtaining leave because none of these three circumstances exist. Cross-Defendants filed a demurrer and other motions challenging the original cross-complaint on 12/13/23. This precludes Travis from relying on the first circumstance listed above. The time for Travis to file an opposition to the demurrer passed in January 2023. This precludes Travis from relying on the second circumstance listed above. There is no stipulation between the parties. This precludes Travis from relying on the third circumstance listed above.

In sum, Travis could not file the FACC without first obtaining an order granting leave to amend.

2/2/26 Order & 2/4/26: The 2/2/26 order vacated the prior order allowing an oral request for leave to amend, without prejudice to Travis’s ability to file a noticed motion. The Court need not rely on its inherent authority to make this order; the Court is simply stating the law with respect to seeking leave to amend. (See CCP, § 426.50.)

Contrary to Travis’s assertion, the 2/4/26 order did not somehow allow him to file the FACC. The 2/4/26 order states that the original cross-complaint is the operative cross-complaint.

Conclusion: Travis filed the FACC without first filing successful noticed motion for leave to amend. It follows that the entire FACC is not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (See CCP, § 436, subd. (b).) An order striking the FACC is warranted.

The Court will not grant leave to amend at this time. This is without prejudice to Travis’s ability to file a noticed motion for leave to amend.

2023CUPP012195: JAMES WALD, et al. vs TRAVIS EDWARD MARTIN, et al.

IV. Cross-Defendants’ Demurrer

Since the FACC is not the operative pleading, Cross-Defendants’ demurrer to the FACC has been rendered moot by the ruling on the motion to strike.

IV.

Conclusion

Plaintiffs’ motion to deem service complete on Airlink is GRANTED. Plaintiffs’ request for an award of costs and fees against Airlink, Travis Martin, or both is GRANTED in PART in the reduced amount of $60.00. The award of costs is payable to Plaintiffs’ counsel by Airlink, Travis, or both, within 30 days.

Travis’s motion to dismiss is DENIED.

Cross-Defendants’ motion to strike the FACC in its entirety is GRANTED, without leave to amend. This is without prejudice to Travis’s ability to file a noticed motion for leave to amend.

Cross-Defendants’ demurrer to the FACC has been rendered moot by the order granting the motion to strike. Therefore, the demurrer will be taken off-calendar.

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