Robert Allen Richards Jr. v. County of Los Angeles et al

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.April 14, 2017

1 SPECIALLY APPEARING DEFENDANT COUNTY OF LOS ANGELES’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(B)5 2:17-CV-400-BRO-(AGRx) n:\files\1830-richards (cola)\pleadings\motion to dismiss\motion to dismiss_2017.04.14_final.docx 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PE TE R SO N · B R A D FO R D · B U R K W IT Z 10 0 N or th F irs t S tre et , S ui te 3 00 B ur ba nk , C al ifo rn ia 9 15 02 81 8. 56 2. 58 00 George E. Peterson, Esq., Bar No.: 054310 Exempt from Filing Fees Avi Burkwitz, Esq., Bar No.: 217225 Government Code Section 6103 Ryan Graham, Esq., Bar No.: 310186 PETERSON · BRADFORD · BURKWITZ 100 North First Street, Suite 300 Burbank, California 91502 818.562.5800 818.562.5810 Attorneys for Specially Appearing Defendant COUNTY OF LOS ANGELES UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ROBERT ALLEN RICHARDS, JR. Plaintiff, vs. COUNTY OF LOS ANGELES (CSSD), MARIA DEL ROSARIO GUARDADO, JESUS D. PEREZ ESQ., DEREK K. WILLIAMS Defendants. Case No.: 2:17-CV-400-BRO-(AGRx) [Assigned to the Honorable: Beverly Reid O’Connell, Courtroom 7C] SPECIALLY APPEARING DEFENDANT COUNTY OF LOS ANGELES’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(B)5; MEMORANDUM OF POINTS AND AUTHORITIES [Filed concurrently with (Proposed) Order] Date: May 22, 2017 Time: 1:30 p.m. Courtroom: 7C Complaint Filed: January 18, 2017 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE AND NOTICE IS HEREBY GIVEN that on May Case 2:17-cv-00400-BRO-AGR Document 27 Filed 04/14/17 Page 1 of 13 Page ID #:181 2 SPECIALLY APPEARING DEFENDANT COUNTY OF LOS ANGELES’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(B)5 2:17-CV-400-BRO-(AGRx) n:\files\1830-richards (cola)\pleadings\motion to dismiss\motion to dismiss_2017.04.14_final.docx 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PE TE R SO N · B R A D FO R D · B U R K W IT Z 10 0 N or th F irs t S tre et , S ui te 3 00 B ur ba nk , C al ifo rn ia 9 15 02 81 8. 56 2. 58 00 22, 2017 at 1:30 p.m., in Courtroom 7C of the United States District Court for the Central District of California, Western Division, at the First Street Courthouse, located at 350 West 1st Street, Los Angeles, CA 90012. Specially Appearing Defendant County of Los Angeles (“the County”) will and hereby does move this Court, pursuant to the Federal Rule of Civil Procedure 12(b)5 to dismiss the Complaint against the County on the grounds that Plaintiff Robert Allen Richards, Jr. (“Plaintiff”) failed to serve a copy of the summons and the complaint in accordance with Federal Rule of Civil Procedure 4 and California Code of Civil Procedure section 416.50. The County therefore moves to dismiss Plaintiff’s action under Federal Rule of Civil Procedure 12(b)(5) for insufficient service. The County’s Motion is brought on the following grounds: 1. Plaintiff has failed to serve the County in compliance with Federal Rule of Civil Procedure 4(j)(2), which provides that serving a local government entity be completed “in the manner prescribed by” state law for “serving a summons or like process on such a defendant.” Under California Code of Civil Procedure section 416.50, a public entity must be served by “delivering a copy of the summons and of the complaint to the clerk, secretary, president, presiding officer, or other head of its governing body.” The County’s designated representative for receiving service is its Board of Supervisors. Plaintiff did not personally serve the board of supervisors. 2. Plaintiff has failed to serve the County in compliance with Federal Rule of Civil Procedure 4(j)(2) because he attempted to serve the County by certified mail, which is not an acceptable manner of serving a public entity under California law. 3. Plaintiff failed to personally serve the County with the Complaint. See Case 2:17-cv-00400-BRO-AGR Document 27 Filed 04/14/17 Page 2 of 13 Page ID #:182 3 SPECIALLY APPEARING DEFENDANT COUNTY OF LOS ANGELES’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(B)5 2:17-CV-400-BRO-(AGRx) n:\files\1830-richards (cola)\pleadings\motion to dismiss\motion to dismiss_2017.04.14_final.docx 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PE TE R SO N · B R A D FO R D · B U R K W IT Z 10 0 N or th F irs t S tre et , S ui te 3 00 B ur ba nk , C al ifo rn ia 9 15 02 81 8. 56 2. 58 00 Fed. R. Civ. Proc., Rule 4(h) The County complied with Central District of California Local Rule 7-3. On March 28, 2017, the County, through its counsel, spoke with Plaintiff over the phone advising him of the grounds for this Motion. To date, the County has yet to be properly served with the Summons and Complaint in accordance with the applicable State and Federal laws. This Motion is based on this notice, the court file, the attachment memorandum of points and authorities, and any other matter the Court may judicially notice at the time for hearing and/or oral arguments. DATED: April 14, 2017 PETERSON · BRADFORD · BURKWITZ By: /s/ Ryan Graham George E. Peterson, Esq. Avi Burkwitz, Esq. Ryan Graham, Esq. Attorneys for Specially Appearing Defendant. COUNTY OF LOS ANGELES Case 2:17-cv-00400-BRO-AGR Document 27 Filed 04/14/17 Page 3 of 13 Page ID #:183 4 SPECIALLY APPEARING DEFENDANT COUNTY OF LOS ANGELES’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(B)5 2:17-CV-400-BRO-(AGRx) n:\files\1830-richards (cola)\pleadings\motion to dismiss\motion to dismiss_2017.04.14_final.docx 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PE TE R SO N · B R A D FO R D · B U R K W IT Z 10 0 N or th F irs t S tre et , S ui te 3 00 B ur ba nk , C al ifo rn ia 9 15 02 81 8. 56 2. 58 00 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On January 18, 2017, Plaintiff Robert Richards (“Plaintiff”) filed this action presumptively alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), and appears to challenge a California Superior Court paternity action involving a fifteen-year-old minor child. (See Compl. Ex. H, at 39, ECF No. 1.) 1 Aside from the legal deficiencies, Plaintiff has failed to properly effect service on the County. 2 Accordingly, Defendant, County of Los Angeles (the “County”), seeks to dismiss the Complaint for insufficient service of process. On or about February 6, 2017, Plaintiff purportedly served a summons on Defendant County of Los Angeles (the “County”) and the non-moving defendants by certified mail. Plaintiff, however, has failed to complete service under Federal Rule of Civil Procedure 4 (“Rule 4”) because he has failed to serve the Board of Supervisors in one of the appropriate manners prescribed by California’s Code of Civil Procedure: (1) in person; (2) by leaving copies of the complaint and summons with a “person who is apparently in charge” and following up by mailing copies by first class mail; (3) or by mail, in accordance with the notice and acknowledgement provisions of California Code of Civil Procedure section 415.30. (Cal. Civ. Proc. Code §§ 416.50, 415.20(a), 415.30.) 3The County therefore respectfully requests the Court dismiss Plaintiff’s Complaint under Rule 12(b)(5) for insufficient service of process. 1 The exhibits to the Complaint do not include page numbers. Accordingly, citations to Plaintiff’s Complaint use the CM/ECF page numbering stamped across the top of the filing. 2 This motion only addresses plaintiff’s failure to properly serve the County. Defendant also contends that the complaint fails to state any claim for relief, however, that is not presently before the Court as the County has yet to be properly served. 3 Plaintiff also failed to personally serve the complaint in accordance with F.R.C.P., Rule 4(h). Case 2:17-cv-00400-BRO-AGR Document 27 Filed 04/14/17 Page 4 of 13 Page ID #:184 5 SPECIALLY APPEARING DEFENDANT COUNTY OF LOS ANGELES’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(B)5 2:17-CV-400-BRO-(AGRx) n:\files\1830-richards (cola)\pleadings\motion to dismiss\motion to dismiss_2017.04.14_final.docx 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PE TE R SO N · B R A D FO R D · B U R K W IT Z 10 0 N or th F irs t S tre et , S ui te 3 00 B ur ba nk , C al ifo rn ia 9 15 02 81 8. 56 2. 58 00 II. FACTUAL SUMMARY AND PROCEDURAL HISTORY The relevant facts for purposes of this motion are essentially as follows: On January 18, 2017, Plaintiff filed his Complaint with several exhibits related to California state court proceedings involving his paternity of a minor child and related child support obligations. (Compl., ECF No. 1.) Plaintiff names the following defendants in addition to the County: Maria Del Rosario Guardado (“Defendant Guardado”), Jesus D. Perez, Esq. (“Defendant Perez”), and Derek K. Williams (“Defendant Williams”). (Id.) On January 18, 2017, Plaintiff filed a summons for the County with a completely blank proof of service, failing to indicate the identity of the server, the date of receipt, the method of service, the date of service, or the server’s signature. The Summons is dated January 18, 2017. (ECF No. 3.) On February 10, 2017, Plaintiff filed the same summons-dated January 18, 2017-with a new proof of service listing Bouvia Richards as the process server. (ECF No. 8.) The proof of service states the following method of service: “Mailed U.S. postal service 1st class mail see attachment.” (Id.) The proof of service does not, however, indicate who was served. (Id.) And while the signature panel is dated February 6, 2017 and the proof of service states that Bouvia Richards received the summons on February 6, 2017, there is no affirmative statement of the date on which the summons was actually served-i.e., date it was mailed. (But see id. at 3 (certified mail receipt dated February 6, 2017).) Proofs of service with identical information were filed on February 10, 2017 for Defendants Guardado, Perez, and Williams. (ECF Nos. 7, 9, 10.) Neither the Complaint nor the Summon bear the stamp or seal of the Los Angeles County Board of Supervisors, which would indicate that such filings had been personally delivered. (See ECF Nos. 1, 3, 8 (absence of Board of Supervisors’ Case 2:17-cv-00400-BRO-AGR Document 27 Filed 04/14/17 Page 5 of 13 Page ID #:185 6 SPECIALLY APPEARING DEFENDANT COUNTY OF LOS ANGELES’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(B)5 2:17-CV-400-BRO-(AGRx) n:\files\1830-richards (cola)\pleadings\motion to dismiss\motion to dismiss_2017.04.14_final.docx 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PE TE R SO N · B R A D FO R D · B U R K W IT Z 10 0 N or th F irs t S tre et , S ui te 3 00 B ur ba nk , C al ifo rn ia 9 15 02 81 8. 56 2. 58 00 date stamp).) Informal attempts to meet and confer have not been fruitful. (Declaration of Ryan A. Graham, Esq. ¶¶ 3-4.) III. LEGAL STANDARD “Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.” Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Under Rule 12(b)(5), a party may challenge “the mode of delivery or the lack of delivery of the summons and complaint.” Olson v. FEC, 256 F.R.D. 8, 9 n.3 (D.D.C. 2009) (citing 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1353 (3d ed. 2004)); accord Fed. R. Civ. P. 12(b)(5). Absent proper service of process, the court cannot exercise personal jurisdiction over a party named as a defendant. Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 344, 350 (1999). “Insufficient service of process may result in either dismissal or the quashing of service under Federal Rule of Civil Procedure 12(b)(5). Azzawi v. Kellogg Brown & Root, No. 2:15-cv-01468-GEB-AC, 2015 U.S. Dist. LEXIS 145116 (E.D. Cal. Oct. 26, 2015) (citing Umbenhauer v. Woog, 969 F.2d 25, 30 (3d Cir. 1992); Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 (2d Cir. 1985); Novak v. World Bank, 703 F.2d 1305, 1310 (1983)). Plaintiff has the burden of establishing the validity of service. Brockmeyer v. May, 383 F.3d 798 (9th Cir. 2004). Moreover, “[a]ll litigants are required to follow the basic requirements of Rule 4, including pro se litigants.” Pedersen v. Mt. View Hosp., No. 1:11-CV-16-CW, 2011 U.S. Dist. LEXIS 153114, *5 (D. Utah Aug. 31, 2011) (citing DiCesare v. Stuart, 12 F.3d 973, 980 (10th Cir. 1993)). Although Rule 4 is flexible, “neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction absent ‘substantial compliance with Rule 4.’” Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986) (citation omitted). Case 2:17-cv-00400-BRO-AGR Document 27 Filed 04/14/17 Page 6 of 13 Page ID #:186 7 SPECIALLY APPEARING DEFENDANT COUNTY OF LOS ANGELES’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(B)5 2:17-CV-400-BRO-(AGRx) n:\files\1830-richards (cola)\pleadings\motion to dismiss\motion to dismiss_2017.04.14_final.docx 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PE TE R SO N · B R A D FO R D · B U R K W IT Z 10 0 N or th F irs t S tre et , S ui te 3 00 B ur ba nk , C al ifo rn ia 9 15 02 81 8. 56 2. 58 00 In granting a Rule 12(b)(4) or 12(b)(5) motion, a Court may either dismiss the action or retain the action and quash the service. Montalbano, 766 F.2d at 740. IV. THE COURT SHOULD GRANT THE MOTION Plaintiff’s attempt at service on the County is defective in two ways. First, by simply sending a certified letter without naming a recipient, Plaintiff has failed to ensure service on the proper person: The Board of Supervisors. Second, Plaintiff has failed to execute service in the proper manner: in person. A. Plaintiff Failed to Serve the County’s Designated Representative for Service in Conformity with California Law: the Board of Supervisors In order to serve a local government entity, Rule 4 provides that the entity must be served by either (1) delivering a copy of the summons and of the complaint to its chief executive officer or (2) serving a copy of each in the manner prescribed by that state's law for serving a summons or like process on such a defendant. Fed R. Civ. P. 4(j)(2)(A)-(B). Plaintiff did not serve the County chief executive officer-he simply mailed a letter to a County administrative building. Service on the County must therefore be measured against the manner prescribed for under California law. In actions filed against a California public entity, California law requires that service be made to the entity’s clerk, secretary, president, presiding officer, or other head of its governing body-i.e., its “designated representatives for service.” Bd. of Supervisors v. Superior Court, 23 Cal. App. 4th 830 (1994); Cal. Civ. Proc. Code § 416.50. Public entities include counties. Cal. Civ. Proc. Code § 416.50(b). The California Secretary of State maintains a list-the California Roster-of public officials for California public entities, and it names the Board of Supervisors for the County of Los Angeles. Therefore, Plaintiffs’ purported service on the County to an unidentified recipient does not satisfy Rule 4 as it does not specify whether the Case 2:17-cv-00400-BRO-AGR Document 27 Filed 04/14/17 Page 7 of 13 Page ID #:187 8 SPECIALLY APPEARING DEFENDANT COUNTY OF LOS ANGELES’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(B)5 2:17-CV-400-BRO-(AGRx) n:\files\1830-richards (cola)\pleadings\motion to dismiss\motion to dismiss_2017.04.14_final.docx 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PE TE R SO N · B R A D FO R D · B U R K W IT Z 10 0 N or th F irs t S tre et , S ui te 3 00 B ur ba nk , C al ifo rn ia 9 15 02 81 8. 56 2. 58 00 Board of Supervisors were served-or, for that matter, any “clerk, secretary, president, presiding officer, or other head” of the County’s governing body. B. Plaintiff Failed to Serve the County in the Appropriate Manner in Conformity with California Law: in Person As the Ninth Circuit has recognized, “[u]nder California law, service upon a municipality must be accomplished by personal delivery, see Cal. Civ. Proc. Code § 416.50, or by leaving a copy of the summons and complaint during usual office hours in the office of the person in charge, see Cal. Civ. Proc. Code § 415.20.” Human v. City of Santa Monica, No. 92-56357, 1993 U.S. App. LEXIS 23206, at *4-6 (9th Cir. Sep. 10, 1993) (citing Pau v. Yosemite Park, 928 F.2d 880, 885 (9th Cir. 1991)); accord Govaerts v. Santa Clara Cty. Dep't of Child Support Servs., No. C-08-00125 RMW, 2009 U.S. Dist. LEXIS 32162, at *11 (N.D. Cal. Mar. 31, 2009) (citing Civ. Proc. Code § 416.50); Johnson & Johnson v. Superior Court, 38 Cal. 3d 243, 248 n.4 (1985). The latter “method of service must be followed by ‘mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.’” Govaerts, 2009 U.S. Dist. LEXIS 32162, at *11 (citing Civ. Proc. Code § 416.50). In either case, a plaintiff serving a California public entity must actually execute service in person at some point. Accordingly, a plaintiff’s “attempted service by certified mail [is] ineffective.” Human, 1993 U.S. App. LEXIS 23206, at *4-6 (holding service by certified mail ineffective on the City of Santa Monica). Failure to serve a public entity in compliance with section 416.50 is a ground for a Rule 12(b)(5) motion. O'Dell v. Inyo Cty. Sheriff's Dep't, No. CV-F-06-658 OWW/SMS, 2006 U.S. Dist. LEXIS 94674, at *13-14, ECF No. 28 (E.D. Cal. Dec. 26, 2006) (granting motion to quash service and dismiss action on ground that, inter alia, plaintiff did not comply with Civ. Proc. Code § 416.50); cf. Duran v. Macias- Case 2:17-cv-00400-BRO-AGR Document 27 Filed 04/14/17 Page 8 of 13 Page ID #:188 9 SPECIALLY APPEARING DEFENDANT COUNTY OF LOS ANGELES’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(B)5 2:17-CV-400-BRO-(AGRx) n:\files\1830-richards (cola)\pleadings\motion to dismiss\motion to dismiss_2017.04.14_final.docx 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PE TE R SO N · B R A D FO R D · B U R K W IT Z 10 0 N or th F irs t S tre et , S ui te 3 00 B ur ba nk , C al ifo rn ia 9 15 02 81 8. 56 2. 58 00 Price, No. 07-CV-01209-AWI-SMS, 2007 U.S. Dist. LEXIS 93440, at *6-8, ECF No. 22 (E.D. Cal. Dec. 19, 2007) (granting motion to quash on ground that, inter alia, the plaintiff failed to serve state officials in compliance with Civ. Proc. Code § 415.30). Although Code of Civil Procedure section 415.30 admittedly does provide for service of process by mail, it requires that the person served be provided with two copies of the notice and acknowledge of receipt of summons. Cal. Civ. Proc. Code § 415.30(a). Plaintiff’s attempt to effect service by mail is defective for several reasons. First, Plaintiff’s proof of service does not indicate that the County was provided with “two copies of the notice and acknowledgement.” Additionally, service by mail is not complete until the acknowledgement is returned to the sender. Cal. Civ. Proc. Code § 415.30(c). “Delivery of the summons and complaint to the [public] entity is not properly accomplished by mail under § 415.30 unless written acknowledgment of receipt of summons is executed.” Packer v. Rowe, No. CIV S- 07-1358-JAM-CMK, 2008 U.S. Dist. LEXIS 35870, at *8-9 n.1, ECF No. 17 (E.D. Cal. Apr. 30, 2008). Thus, “merely mailing copies” of a summons and complaint to a California county’s board of supervisors “d[oes] not constitute the effectuation of proper service.” Colen v. United States, No. EDCV 07-1359-RSWL (RNB), 2008 U.S. Dist. LEXIS 124879, at *6-7 (C.D. Cal. Apr. 17, 2008). Based on the foregoing, Plaintiff’s attempts to mail-serve the County is improper under the law. Accordingly, service of plaintiff’s complaint has never been effectuated on the County and plaintiff’s complaint must be dismissed. /// /// /// /// Case 2:17-cv-00400-BRO-AGR Document 27 Filed 04/14/17 Page 9 of 13 Page ID #:189 10 SPECIALLY APPEARING DEFENDANT COUNTY OF LOS ANGELES’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(B)5 2:17-CV-400-BRO-(AGRx) n:\files\1830-richards (cola)\pleadings\motion to dismiss\motion to dismiss_2017.04.14_final.docx 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PE TE R SO N · B R A D FO R D · B U R K W IT Z 10 0 N or th F irs t S tre et , S ui te 3 00 B ur ba nk , C al ifo rn ia 9 15 02 81 8. 56 2. 58 00 V. CONCLUSION For the reasons described above, the County respectfully requests the Court to dismiss Plaintiff’s Complaint pursuant to Rule 12(b)(5), as service was never effectuated on the County. DATED: April 14, 2017 PETERSON · BRADFORD · BURKWITZ By: /s/ Ryan Graham George E. Peterson, Esq. Avi Burkwitz, Esq. Ryan Graham, Esq. Attorneys for Specially Appearing Defendant. COUNTY OF LOS ANGELES Case 2:17-cv-00400-BRO-AGR Document 27 Filed 04/14/17 Page 10 of 13 Page ID #:190 11 SPECIALLY APPEARING DEFENDANT COUNTY OF LOS ANGELES’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(B)5 2:17-CV-400-BRO-(AGRx) n:\files\1830-richards (cola)\pleadings\motion to dismiss\motion to dismiss_2017.04.14_final.docx 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PE TE R SO N · B R A D FO R D · B U R K W IT Z 10 0 N or th F irs t S tre et , S ui te 3 00 B ur ba nk , C al ifo rn ia 9 15 02 81 8. 56 2. 58 00 DECLARATION OF RYAN A. GRAHAM, ESQ. I, Ryan A. Graham, Esq., hereby declare as follows: 1. I am an attorney at law duly licensed to practice in all the courts of the State of California and an associate with Peterson • Bradford • Burkwitz LLP, attorneys for record for Defendant COUNTY OF LOS ANGELES. 2. The following facts are within my personal knowledge and if sworn as a witness, I could and would completely testify to them. 3. On March 28, 2017, I called and spoke with Plaintiff Robert Allen Richards, Jr. (“Plaintiff”) over the telephone to discuss Defendant County of Los Angeles’ (the “County”) intention to move to dismiss his action under Federal Rule of Civil Procedure 12(b)(5) for failure to properly serve the County, as a public entity, pursuant to Federal Rule of Civil Procedure 4(j)(2) and the California Code of Civil Procedure, which require in-person service on the Board of Supervisors. I provided Plaintiff with the address where he could personally serve the County-the Kenneth Hahn Hall of Administration, 500 West Temple Street, Suite 383, Los Angeles, CA 90012. I told Plaintiff that if he properly served the County’s Board of Supervisors by Friday, April 7, 2017, the County would not file a motion to dismiss and that the County would not file until Monday, April 10, 2017. 4. On March 28, 2017-after speaking with Plaintiff-I sent Plaintiff a letter memorializing our conversation. A true and correct copy of the March 28, 2017 letter is attached hereto as EXHIBIT A. I declare under penalty of perjury under the laws of California that the foregoing is true and correct, and that this declaration was executed on this 14th day of April 2017. /s/ Ryan A. Graham Ryan A. Graham, Esq Case 2:17-cv-00400-BRO-AGR Document 27 Filed 04/14/17 Page 11 of 13 Page ID #:191 12 SPECIALLY APPEARING DEFENDANT COUNTY OF LOS ANGELES’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(B)5 2:17-CV-400-BRO-(AGRx) n:\files\1830-richards (cola)\pleadings\motion to dismiss\motion to dismiss_2017.04.14_final.docx 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PE TE R SO N · B R A D FO R D · B U R K W IT Z 10 0 N or th F irs t S tre et , S ui te 3 00 B ur ba nk , C al ifo rn ia 9 15 02 81 8. 56 2. 58 00 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 100 North First Street, Suite 300, Burbank, California 91502. On April 14, 2017, I served the foregoing document described as: SPECIALLY APPEARING DEFENDANT COUNTY OF LOS ANGELES’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(B)5; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF RYAN A. GRAHAM, ESQ. on interested parties in this action by placing a true and correct copy thereof enclosed in a sealed envelope addressed as follows: SEE ATTACHED MAILING LIST  BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed document(s) with the Clerk of the Court by using the CM/ECF system. Participants in this case who are registered CM/ECF users will be served by the CM/ECF system. Participants in this case who are not registered CM/ECF users will be served by mail or by other means permitted by the court rules.  BY MAIL: I deposited such envelope in the mail at Burbank, California. The envelope was mailed with postage thereon fully prepaid. As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Burbank, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.  FEDERAL: I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on April 14, 2017, at Burbank, California. /s/ Lynda Kerekesh Lynda Kerekesh Case 2:17-cv-00400-BRO-AGR Document 27 Filed 04/14/17 Page 12 of 13 Page ID #:192 13 SPECIALLY APPEARING DEFENDANT COUNTY OF LOS ANGELES’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(B)5 2:17-CV-400-BRO-(AGRx) n:\files\1830-richards (cola)\pleadings\motion to dismiss\motion to dismiss_2017.04.14_final.docx 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PE TE R SO N · B R A D FO R D · B U R K W IT Z 10 0 N or th F irs t S tre et , S ui te 3 00 B ur ba nk , C al ifo rn ia 9 15 02 81 8. 56 2. 58 00 SERVICE LIST RE: Richards, Robert v. County of Los Angeles Case No.: CV-400-BRO (AGRX) Robert Allen Richards Jr. P.O. Box 4442 Lancaster, CA. 93539 T: 661-965-3555 In Pro Per Mitchell F. Mulbarger, Esq. BAKER, KEENER & NAHRA, LLP 633 West 5th Street, Suite 4900 Los Angeles, CA 90071 Telephone: (213) 241-0900 Facsimile: (213) 241-0990 Email: mmulbarger@bknlawyers.com Attorneys for Defendant, JESUS D. PEREZ (Sued as Jesus D. Perez, Esq.) Case 2:17-cv-00400-BRO-AGR Document 27 Filed 04/14/17 Page 13 of 13 Page ID #:193 Case 2:17-cv-00400-BRO-AGR Document 27-1 Filed 04/14/17 Page 1 of 3 Page ID #:194 Case 2:17-cv-00400-BRO-AGR Document 27-1 Filed 04/14/17 Page 2 of 3 Page ID #:195 Case 2:17-cv-00400-BRO-AGR Document 27-1 Filed 04/14/17 Page 3 of 3 Page ID #:196 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ROBERT ALLEN RICHARDS, JR. Plaintiff, vs. COUNTY OF LOS ANGELES (CSSD), MARIA DEL ROSARIO GUARDADO, JESUS D. PEREZ ESQ., DEREK K. WILLIAMS Defendants. Case No.: 2:17-CV-400-BRO-(AGRx) [Assigned to the Honorable: Beverly Reid O’Connell, Courtroom 7C] [PROPOSED] ORDER ON SPECIALLY APPEARING DEFENDANT COUNTY OF LOS ANGELES’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(B)5 [Filed concurrently with Specially Appearing Defendant, County of Los Angeles’ Notice of Motion and Motion to Dismiss Plaintiff’s Complaint] Date: May 22, 2017 Time: 1:30 p.m. Courtroom: 7C Complaint Filed: January 18, 2017 [PROPOSED] ORDER Specially Appearing Defendant COUNTY OF LOS ANGELES’ Motion to Dismiss Plaintiff’s Complaint, came for hearing on May 22, 2017 at 1:30 p.m., before the Honorable Beverly Reid O’Connell, U.S. District Judge. The Court read and considered the papers submitted both in support of and in opposition to the Motion, and based upon the papers and pleadings on file in this matter, as well as Case 2:17-cv-00400-BRO-AGR Document 27-2 Filed 04/14/17 Page 1 of 4 Page ID #:197 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the oral arguments, IT IS HEREBY ORDERED ADJUDGED AND DECREED that: Plaintiff’s Complaint against Specially Appearing Defendant COUNTY OF LOS ANGELES is dismissed in its entirety, with prejudice. IT IS SO ORDERED: DATED: HON. BEVERLY REID O’CONNELL ________________________ ______________________________ Case 2:17-cv-00400-BRO-AGR Document 27-2 Filed 04/14/17 Page 2 of 4 Page ID #:198 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 100 North First Street, Suite 300, Burbank, California 91502. On April 14, 2017, I served the foregoing document described as: [PROPOSED] ORDER ON SPECIALLY APPEARING DEFENDANT COUNTY OF LOS ANGELES’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT on interested parties in this action by placing a true and correct copy thereof enclosed in a sealed envelope addressed as follows: SEE ATTACHED MAILING LIST  BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed document(s) with the Clerk of the Court by using the CM/ECF system. Participants in this case who are registered CM/ECF users will be served by the CM/ECF system. Participants in this case who are not registered CM/ECF users will be served by mail or by other means permitted by the court rules.  BY MAIL: I deposited such envelope in the mail at Burbank, California. The envelope was mailed with postage thereon fully prepaid. As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Burbank, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.  FEDERAL: I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on April 14, 2017, at Burbank, California. /s/ Lynda Kerekesh Lynda Kerekesh Case 2:17-cv-00400-BRO-AGR Document 27-2 Filed 04/14/17 Page 3 of 4 Page ID #:199 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST RE: Richards, Robert v. County of Los Angeles Case No.: CV-400-BRO (AGRX) Robert Allen Richards Jr. P.O. Box 4442 Lancaster, CA. 93539 T: 661-965-3555 In Pro Per Mitchell F. Mulbarger, Esq. BAKER, KEENER & NAHRA, LLP 633 West 5th Street, Suite 4900 Los Angeles, CA 90071 Telephone: (213) 241-0900 Facsimile: (213) 241-0990 Email: mmulbarger@bknlawyers.com Attorneys for Defendant, JESUS D. PEREZ (Sued as Jesus D. Perez, Esq.) Case 2:17-cv-00400-BRO-AGR Document 27-2 Filed 04/14/17 Page 4 of 4 Page ID #:200