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Estate of Smith v. City of San Diego

United States District Court, S.D. California

July 19, 2017

Estate of TIMOTHY GENE SMITH, deceased, by his successor in interest JANIE RICHELLE SANDERS; JANIE RICHELLE SANDERS, as an individual; SANDY LYNN SIMMONS; and WYATT ALLEN GUNNER SMITH, Plaintiffs,
v.
CITY OF SAN DIEGO; SHELLEY ZIMMERMAN AND SCOTT HOLSLAG, as individuals and employees of City of San Diego; NATALIE ANN MACEY, as an individual doing business as Macey Bail Bonds; LEGAL SERVICE BUREAU, Inc., a California domestic corporation doing business as Global Fugitive Recovery; DAN ESCAMILLA, as an individual and on behalf of Legal Service Bureau, Inc.; LELAND CHAPMAN BAIL BOND CO. INC., a Colorado corporation; LBC, Inc., a Hawaii corporation; KAMA AINA BAIL BONDS, INC., a Hawaii corporation; LELAND B. CHAPMAN, as an individual and on behalf of Leland Chapman Bail Bond Co. Inc., LBC, Inc., and Kama Aina Bail Bonds, Inc., Defendants.

          ORDER

          WILLIAM Q. HAYES, UNITED STATES DISTRICT JUDGE

         The matter before the Court is the Ex Parte Motion for Alternative Service of Summons filed by Plaintiffs Estate of Timothy Gene Smith, by his successor in interest Janie Richelle Sanders; Janie Richelle Sanders; Sandy Lynn Simmons; and Wyatt Allen Gunner Smith (“Plaintiffs”) (ECF No. 37).

         I. Background

         On December 8, 2016, Plaintiffs initiated this action by filing a complaint. (ECF No. 1). On December 29, 2016, Plaintiffs filed the First Amended Complaint, which is the operative complaint in this matter. (ECF No. 7). The First Amended Complaint includes four causes of action against Defendant Dan Escamilla: conspiracy to violate civil rights; intentional infliction of emotional distress; defamation; and false light. Id. at 20-26. On May 4, 2017, the Court ordered that “Plaintiffs shall have ninety (90) days from the date of this order to serve and file proof of service of summons of the complaint on the remaining defendants to be served.” (ECF No. 36 at 7).

         On May 4, 2017, Plaintiffs filed the Ex Parte Motion for Alternative Service of Summons as to Defendant Dan Escamilla (“Defendant Escamilla”). (ECF No. 37). In a Declaration by one of Plaintiffs' Counsel Donald A. Green attached to the Motion, Green states, in part,

“On December 12, 2016, I sent a Notice a Notice of Lawsuit and Request for Waiver of Service of Summons on Dan Escamilla at 888 W. Santa Ana Blvd., Suite 100, Santa Ana, CA 92701 by certified U.S. Mail . . . Included in the package were the Notice, Waiver, copy of the summons, and copy of the lawsuit. . . . This notice and waiver package was received by Dan Escamilla on December 14, 2016. . . . On December 22, 2016, my co-counsel and I received a letter from Dan Escamilla confirming his receipt of this lawsuit and attacking plaintiffs' allegations.”

         (ECF No. 37-2 at 2; Green Decl. at ¶¶ 5-8).

         The December 22, 2016 letter from Defendant Escamilla to Plaintiffs' Counsel states, in part,

This letter is intended to advise each of the plaintiff's attorneys, and the plaintiff, that the claims brought against the defendant are wholly without merit and are not warranted under existing law. Based on the lack of legal and factual merit of plaintiff's claims against this defendant, the undersigned is demanding immediate dismissal as a defendant in this action.
Finally, this letter will place plaintiffs, and its attorneys, on notice that if the undersigned and related entities are not immediately dismissed from this action, monetary and nonmonetary sanctions, including but not limited to a Rule 11 motion will be brought against the plaintiffs and its attorneys seeking costs, attorney's fees and sanctions.

(ECF No. 37-5 at 1). The letter lists several causes of action, and states that the complaint is in violation of California's Anti-SLAPP statute and “the lawsuit is in potential violation of the attorneys' ethical obligations.” Id. at 2-3. The letter bears the signature of “Dan Escamilla[.]” Id. at 5.

         On January 9, 2017, a letter was signed and sent by Defendant Escamilla to Plaintiffs' Counsel. (ECF No. 37-6). The letter states “Thank you for withdrawing, as to the undersigned defendant and Legal Service Bureau, Inc. dba Global Fugative Recovery, the cause of action for negligence, the cause of action for wrongful death (CCP §337.60) and the survival action (CCP §337.30).” Id. at 1. The letter states: “I am continuing to maintain that there is a lack of legal and factual merit for any of the causes of actions remaining as to the undersigned defendant and related entities.” Id. The letter discusses causes of actions alleged in the First Amended Complaint. Id. at 1-3.

         Green states that “[i]n response to Mr. Escamilla's letter, plaintiffs agreed to dismiss the cause of action for defamation.” (ECF 37-2 at 3; Green Decl. at ¶ 10). On January 26, 2017, Plaintiffs' Counsel sent a letter to Defendant Escamilla, stating, in part,

As I told you in our conservation, I have reviewed your second letter. You make a valid point regarding the defamation cause of action being barred by the one year statute of limitations period of CCP ยง 340(c). In light of that, I have filed a dismissal of that cause of action only. I do not agree with any of your other arguments as expressed in your letter. I will proceed with ...

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