Parker Brandt vs Fresno Pacific University et a

Case Number

Case Type

Civil Law & Motion Hearing Date / Time Mon, 06/08/2026 - 10:00 Nature of Proceedings Demurrers (3); Motions to Quash (3); Motion re Sanctions Tentative Ruling Parker Brandt v. Fresno Pacific University, et al. Case No. 25CV00883 Hearing Date: June 8, 2026 HEARING: (1) Motion of Defendant Fresno Pacific University to Quash Service of Summons (2) Motion of Defendant Raymond Winter to Quash Service of Summons (3) Motion of Defendant Robert Foster to Quash Service of Summons (4) Demurrer of Defendant Fresno Pacific University to Complaint (5) Demurrer of Defendant Raymond Winter to Complaint (6) Demurrer of Defendant Robert Foster to Complaint (7) Motion of Defendants Westmont College and Russel Smelley for Sanctions ATTORNEYS: For Plaintiff Parker Brandt: Daryl J.

Williams For Defendants Fresno Pacific University, Robert Foster, Dr. Raymond Winter: Christopher Campbell, Angelique Hernandez, Emily Gunderson, Lydecker For Defendants Westmont College and Russel Smelley: Colleen A. Deziel, Peter B. Rustin, Anderson, McPharlin & Conners LLP

TENTATIVE RULING: The motion of defendant Fresno Pacific University to quash service of summons is granted. Any service of process asserted as to defendant Fresno Pacific University based upon delivery of summons to Leigh Spencer in December 2025 is quashed and determined to be invalid. Based upon the lack of effective service on Fresno Pacific University, the demurrer of defendant Fresno Pacific University to the complaint is ordered off calendar.

The motions of defendants Raymond Winter and Robert Foster to quash service of summons, the demurrers of Raymond Winter and Robert Foster, and the motion of defendants Westmont College and Russel Smelley for sanctions are all continued to July 27, 2026, at 10:00 a.m. The case management conference set for July 27, 2026, at 8:30 a.m. is continued to that same date but at 10:00 a.m., to be heard at the same time as the motions.

Plaintiff Parker Brandt shall file and serve opposition, if any, to the motions of defendants Raymond Winter and Robert Foster to quash service of summons, and to the demurrers of Raymond Winter and Robert Foster, on or before July 14, 2026. Plaintiff Parker Brandt shall also file and serve any response to the evidence attached to the reply of Westmont College and Russel Smelley with respect to the motion for sanctions on or before July 14, 2026.

Background: On February 10, 2025, plaintiff Parker Brandt filed his complaint in this action asserting causes of action for negligence arising out of an injury occurring while competing in a track and field meet. Brandt alleges that he was a member of the track and field team at defendant Fresno Pacific University (Fresno). The team was coached by defendants Dr. Raymond Winter and Robert Foster. The meet took place at defendant Westmont College (Westmont), whose team was coached by defendant Russel Smelley.

On January 8, 2026, Westmont and Smelley (collectively, Westmont Defendants) filed their answer to the complaint, generally denying the allegations thereof and asserting 23 affirmative defenses. On February 11, 2026, Fresno concurrently filed a motion to quash service of summons and a demurrer to the complaint.

On April 1, 2026, the Westmont Defendants filed a motion for an award of monetary sanctions pursuant to Code of Civil Procedure section 128.7. On May 7, the Westmont Defendants filed a notice of errata for this motion. On April 7, 2026, plaintiff filed a proof of service of summons as to defendant Foster by substituted service on April 6. On May 5, 2026, plaintiff filed a proof of service of summons as to defendant Winter by substituted service on April 6. On May 6, 2026, Winter concurrently filed a motion to quash service of summons and a demurrer to the complaint. Also on May 6, Foster concurrently filed a motion to quash service of summons and a demurrer to the complaint.

On May 20, 2026, plaintiff filed oppositions to Fresno's motion to quash service of summons, Fresno's demurrer, and Westmont Defendants' motion for sanctions. On May 29, 2026, Fresno filed replies to its motion to quash service of summons and demurrer, and the Westmont Defendants filed a reply as to their motion for sanctions. Also on May 29, Foster and Winter filed notices that no opposition had been received as to either their motions to quash service of summons or their demurrers.

On June 3, 2026, Winter and Foster filed a supplement to their notices of non-opposition in the nature of a declaration of a paralegal with counsel for Winter and Foster confirming service on counsel for plaintiff and communications with plaintiff's counsel, but also noting a subsequent rejection of a follow-up email to plaintiff's counsel.

Analysis: (1) Fresno Motion to Quash Service of Summons "A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: [P.] (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her." (Code Civ. Proc., Sec. 418.10, subd. (a)(1).) "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 existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.' " (Summers v.

McClanahan (2006) 140 Cal.App.4th 403, 413, fn. and citation omitted.) " '[T]he original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void.' [Citation.]" (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 809.)

There is no proof of service in the court's file asserting service on Fresno. Fresno brings this motion based upon what appeared to Fresno as an attempt at service. According to Fresno, on December 12, 2025, Leigh Spencer was a Payroll and Benefits Administrator for Fresno, working in its Human Resources office. (Spencer decl., P. 2.) On that day, an employee working at the front desk informed the process server multiple times that no registered agent of service was available to sign the summons. (Id., P. 3.) The agent for service of process, Anthony Gardner, was unavailable. (Id., P. 4; Hernandez decl., P. 3 & exhibit 2.) Because the process server refused to leave the office and Spencer was the highest-ranking person in the Human Resources office at the time, Spencer signed the documents to get the process server to leave. (Spencer decl., P. 5.)

According to plaintiff, Mark W. Lally was the person attempting to serve Fresno. (Lally decl., P.P. 1, 3.) Lally is a disabled individual who relies on a manual wheelchair to get around. (Lally decl., P. 2.) When Lally arrived on campus, he was directed to the administration building, McDonald Hall. (Id., P. 3.) Inside the building, he went to the registrar's office, requested the location of the President of the University's Office, and was informed it was on the 2nd floor. (Ibid.) Lally was directed to a bank of elevators, which were out of service. (Id., P.P. 3, 4.)

Lally was informed that there was no other disabled access to the second floor. (Id., P. 4.) Lally requested that the registrar's office call and ask if the President or another officer could present themselves in the lobby. (Ibid.) The President's executive assistant, Samantha Ens, presented herself and clearly indicated that she could not accept service and that the President would not come down. (Id., P. 5.) Ens indicated that Anthony Gardner could accept service, directing Lally to the Human Resources office. (Id., P. 6.)

Upon arrival at that office, Lally was informed that Garner was not available. (Id., P. 7.) Lally inquired of the employee at the front desk if anyone else was available to accept service of process, after which Leigh Spencer presented himself. (Ibid.)

According to Lally, Lally asked if Spencer was authorized to accept service for Fresno. (Lally decl., P. 8.) Spencer stated that he could accept service. (Ibid.) Lally relied upon his representation and served him, requesting that Spencer sign the proof of service acknowledging he had accepted service. (Ibid.) Lally never refused to leave. (Id., P. 9.) Had Spencer stated he was not authorized to accept service, Lally would have left and returned to McDonald Hall to again request to see the President. (Ibid.)

Fresno is a corporation. (Hernandez decl., P. 3 & exhibit 2.) "A summons may be served on a corporation by delivering a copy of the summons and the complaint by any of the following methods: "(a) To the person designated as agent for service of process as provided by any provision in Section 202, 1502, 2105, or 2107 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code, as in effect on December 31, 1976, with respect to corporations to which they remain applicable). "(b) To the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process." (Code Civ. Proc., Sec. 416.10, subds. (a), (b).)

There is no substantial dispute that service was not made to the person designated as agent for service of process, Anthony Gardner, or to the "president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager." In opposition, plaintiff argues that service is valid because service was made on someone with ostensible authority, because there has been substantial compliance with the service statute, or because service was blocked.

"[S]ervice upon a corporate agent with ostensible authority to accept service suffices to acquire jurisdiction over the corporation ...." (Pasadena Medi-Center Associates v. Superior Court (1973) 9 Cal.3d 773, 777.) "Civil Code section 2317 defines: 'Ostensible authority is such as principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess.' " (Id. at pp. 779-780.) The evidence presented here does not show ostensible agency in Spencer. Even assuming the disputed fact that Spencer himself stated he was authorized to accept service, "ostensible authority cannot be created merely by a purported agent's representation." (Young v.

Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1132.) There is no credible evidence that Fresno authorized Spencer to accept service or that any act or omission of Fresno would reasonably lead a third party to believe that Spencer was authorized to accept service.

The evidence presented does not show that there was substantial compliance by service on any person on whom service would be effective as to Fresno. The only service asserted is service on Spencer, which as noted above, is ineffective as service on Fresno. The evidence presented also does not show that service was blocked. The evidence shows that Lully was unable to get to the second floor of the building containing the office of the President (undeniably a person on whom effective service could be made) because there was at the time no disabled access to that floor.

Whether or not this raises issues under the Americans with Disabilities Act, Lully was, upon his request, directed to the office of the designated agent for service of process. Lully went to that office. The evidence shows only that the designated agent was not then available. These facts do not show that service on Fresno was blocked or deliberately avoided. No argument or evidence is presented here that delivery to Spencer constitutes substituted service on a person to whom service would be effective. (See Code Civ.

Proc., Sec. 415.20, subd. (a).)

The court concludes that plaintiff has not met his burden to show effective service on Fresno on the basis of the delivery of summons to Spencer in December 2025. Accordingly, the motion to quash will be granted.

(2) Other Motions to Quash Proofs of service have been filed asserting substituted service on Foster and Winter by delivery at their respective offices or usual places of business. Foster and Winter have filed motions to quash providing evidence that the place of service was neither their office nor usual place of business. (Foster decl., P.P. 4-7; Winter decl., P.P. 4-7.) No opposition has been filed to the motions to quash service of summons of Foster and Winter. Notices of that no opposition had been received by the moving parties were served and filed with the court, but counsel for plaintiff reportedly stated to defendants' paralegal that he had not been served with the Winter and Foster motions. The hearing on these motions will be continued to allow for opposition to be filed.

(3) Demurrers Because the court will grant Fresno's motion to quash service of summons, Fresno's demurrer is moot and will be ordered off calendar. Because the court will continue the hearing on the motions of Foster and Winter to quash, the court will continue the hearing on the demurrers of Foster and Winter to be heard with the motions to quash.

(4) Westmont Defendants' Motion for Sanctions The Westmont Defendants move for sanctions under Code of Civil Procedure section 128.7. In the moving papers, counsel for the Westmont Defendants, attorney Peter B. Rustin, provided a declaration stating, in part: "On March 9, 2026, I caused my secretary, Ms. Andujo, to serve electronically the moving papers for this Motion on Mr. Williams. Plaintiff and his counsel, Mr. Williams, did not withdraw the Complaint. At least 21 days after service, I caused my secretary to file this Motion pursuant to Section 128.7(c) of the Code of Civil Procedure." (Rustin decl., P. 9.) No declaration was provided in the moving papers from Andujo.

In opposition, plaintiff's counsel, attorney Daryl J. Williams, provided a declaration stating, in part: "I received no SAFE HARBOR NOTICE, by either e-mail or regular US Postal service mail at any time prior to receipt of the motion by email on March 31, 2026. I have made a diligent search of my emails for the date Mr. Rustin claims the email was sent by an assistant and several days before and after that date, there is no email from anyone at Anderson McPharlin, and Conners. In fact, prior to the email serving the motion I have never received an email related to this case from anyone at Anderson, McPharlin, and Conners." (Williams decl., P. 3.)

In reply, the Westmont Defendants provide the declaration of Lorraine Andujo which attaches copies of the March 9, 2026, email (and the email attachments), and states that there was no return email indicating that the March 9, 2026, email was undeliverable or undelivered. (Andujo decl., P.P. 3-4.) Plaintiff has not had the opportunity to respond to this reply evidence. The court will continue the hearing on the motion for sanctions in order for plaintiff to file a response. Because timely service of the safe harbor notice is a prerequisite to any sanctions motion, the court wants the record clear on this issue before it engages in any substantive analysis of the motion. Nothing herein should be construed as suggesting that the court has formed any opinion as to the merits of the motion.

Tentative Ruling: Conservatorship of Christine Nyun-Han Tentative Ruling: Conservatorship of Christine Nyun-Han