Judge: Andrew E. Cooper, Case: 23CHCV03300, Date: 2024-03-05 Tentative Ruling

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Case Number: 23CHCV03300    Hearing Date: March 5, 2024    Dept: F51

MOTION TO QUASH SERVICE OF PROCESS

Motion Filed: 2/13/24

MOVING PARTY: Defendant Van Nuys Plywood and Lumber, a de facto General Partnership (“Moving Defendant”)

RESPONDING PARTY: Plaintiffs DG Lumber Group, Inc. and Tzvika Diner (collectively, “Plaintiffs”)

NOTICE: OK

RELIEF REQUESTED: An order quashing Plaintiffs’ service of their Complaint and Summons on Moving Defendant.

TENTATIVE RULING: The motion is denied.

BACKGROUND 

This is a contractual fraud action. On 10/30/23, Plaintiffs filed their complaint, alleging 21 causes of action against four named defendants. Moving Defendant is alleged as a “defacto general Partnerships with its general partners consisting of [defendants] Luthman and Holland.” (Compl. ¶ 6.)

On 11/14/23, Plaintiffs filed a proof of service indicating that Moving Defendant was served with process via personal service at 12:11 PM on 11/2/23. On 2/13/24, Moving Defendant filed the instant motion to quash. On 2/21/24, Plaintiffs filed their opposition. On 2/27/24, Moving Defendant filed its reply.

ANALYSIS

A defendant may move, “on or before the last day of his or her time to plead,” to quash the service of summons by alleging a lack of personal jurisdiction, or to dismiss the action on the ground of inconvenient forum. (Code Civ. Proc. § 418.10, subd. (a).) A motion to quash must be granted if the court finds that either (1) there is no basis for exercising personal jurisdiction over the defendant or (2) service on the defendant was improper. (Ziller Elecs. Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229.)

“A summons may be served on an unincorporated association (including a partnership) by delivering a copy of the summons and of the complaint: (a) If the association is a general or limited partnership, to the person designated as agent for service of process in a statement filed with the Secretary of State or to a general partner or the general manager of the partnership …” (Code Civ. Proc. § 416.40, subd. (a).)

 “The return of a [registered] process server … establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” (Evid. Code § 647.) “The filing of a proof of service creates a rebuttable presumption that the service was proper.” (Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.)

Here, the proof of service submitted by Plaintiffs indicates that the summons and complaint were served by personal service on 11/2/23, at 12:11 PM, on an individual identified as “Gena Luthman, Authorized to Accept Service,” and described as “Female; Age Late 70s; White Skin Tone; Gray Hair; 5’4”; 120 lbs” at 6913 Wish Avenue, Van Nuys, California 91406. (11/14/23 POS, ¶¶ 3b, 4, 5a.)

However, “once a defendant files a motion to quash the burden is on the plaintiff to prove by a preponderance of the evidence the validity of the service and the court's jurisdiction over the defendant.” (Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 991.) Here, Moving Defendant argues that the service was defective because “a ‘Gena Luthman’ is not a known or existing person and certainly is not and was not an authorized agent, nor an employee, nor in charge, nor authorized to accept service for a ‘Van Nuys Plywood and Plumber,’ a de facto general partnership.” (Def.’s Mot. 3:8–10.)

As a preliminary matter, Plaintiffs argue that Moving Defendant’s motion should be denied outright as untimely. A defendant may move to quash service anytime before a responsive pleading is due, usually 30 days from the date of completed service of the complaint. (Code Civ. Proc. § 418.10, subd. (a).) Here, as Plaintiffs served Moving Defendant on 11/2/23, the last day for Moving Defendant to file the instant motion was on 12/4/23. (Code Civ. Proc. §§ 412,20, subd. (a)(3); 12a, subd. (a).) However, Moving Defendant filed the instant motion on 2/13/24. Accordingly, the Court denies the instant motion as untimely. The Court notes that the denial of the instant motion would not unduly prejudice Moving Defendant, where the partnership is sufficiently apprised of the claims against it, as shown by the filing of its demurrer against Plaintiffs’ complaint on 2/8/24.

The Court further notes that Moving Defendant points out apparent misspellings in Plaintiffs’ proof of service, and thus places the burden on Plaintiffs to clarify any such errors in the court record.

CONCLUSION 

The motion is denied.