Judge: Anne Richardson, Case: 23STCV28020, Date: 2024-04-18 Tentative Ruling

Case Number: 23STCV28020    Hearing Date: April 18, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Initial Pleading

On November 15, 2023, Plaintiff Erin Joyce, dba Erin Joyce Law, sued Defendants Derek Khanna, and Does 1 to 100 pursuant to a Complaint alleging claims of (1) Breach of Contract, (2) Quantum Meruit, and (3) Common Count: Services Provided.

On November 18, 2023, service of the summons, Complaint, and other documents was purportedly effected on Defendant Khanna via substituted service.

On December 14, 2023, Plaintiff Joyce filed a proof of service.

On February 1, 2024, Plaintiff filed a First Amended Complaint (FAC) alleging the same three claims against the same Defendants.

The record fails to reflect a proof of service of the FAC on Defendant Khanna.

B. Motion to Quash Service of Summons and First Amended Complaint

On January 18, 2024—prior to Plaintiff filing her FAC—specially appearing Defendant Khanna filed a motion to quash service of the summons as related to the initial November 15, 2023, Complaint. The motion was set for hearing on April 24, 2024.

On March 13, 2024, the Court continued the hearing on Defendant Khanna’s motion to quash service of summons to May 1, 2024 due to the Court’s own calendaring issue.

On March 14, 2024, at a Case Management Conference, the Court advanced the hearing on Defendant Khanna’s motion to quash service of summons to April 18, 2024 on the stipulation of all parties.

On April 8, 2024, Plaintiff Joyce filed an opposition to Defendant Khanna’s motion to quash.

On April 12, 2024, Defendant Khanna filed a reply to Plaintiff Joyce’s opposition.

Defendant Khanna’s motion to quash is now before the Court.

C. Motion for Order Appointing Arbitrator

On February 27, 2024, Plaintiff Joyce filed a motion to obtain a court order selecting an arbitrator to resolve the parties’ disputes. The motion was set for hearing on April 18, 2024.

On March 12, 2024, Defendant Khanna filed an opposition to Plaintiff Joyce’s motion for an order appointing an arbitrator.

On March 14, 2024, Plaintiff Joyce filed a reply to Defendant Khanna’s opposition.

Plaintiff Joyce’s motion for order appointing arbitrator is now before the Court.

D. Demurrer

On March 12, 2024, Defendant Khanna filed a demurrer to the First Amended Complaint. The motion was set for hearing on April 4, 2024.

On March 14, 2024, the Court advanced and continued the hearing on Defendant Khanna’s demurrer to April 18, 2024.

On April 8, 2024, Plaintiff Joyce filed an opposition to Defendant Khanna’s demurrer.

On April 12, 2024, Defendant Khanna filed a reply to Plaintiff Joyce’s opposition.

Defendant Khanna’s demurrer is now before the Court.

II. First Amended Complaint: STRICKEN absent proof of service of same

A plaintiff may amend the complaint once as a matter of course (i.e., without obtaining leave of court) either (1) before an answer, demurrer, or motion to strike is filed or (2) after a demurrer or motion to strike is filed but before the hearing, as long as the amended complaint is filed and served before the deadline for filing an opposition to the demurrer or motion to strike (generally nine court days before the hearing). (Code Civ., Proc., §§ 472, subd. (a), 1005, subd. (b).)

Thereafter, a court order permitting amendment or a stipulation between the parties permitting the amendment must be secured by the plaintiff prior to filing an amended pleading. (See Code Civ., Proc., § 472, subd. (a).)

Here, Plaintiff Joyce filed an amended pleading on February 1, 2024. The record fails to reflect a court order permitting this amendment. The record also fails to reflect a stipulation by the parties and signed by the Court agreeing to the amendment. Thus, Plaintiff Joyce could have only filed the FAC as a matter of course.

A plain reading of section 472, subdivision (a), appears to permit the amendment here because it was filed before an answer, demurrer, or motion to strike were filed by Defendants Khanna.

However, no proof of service for the FAC appears in the record. A complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint. (Cal. Rules of Court, rule 3.110(b).) Here, Plaintiff Joyce filed the FAC on February 1, 2024. 60 days after February 1st was April 1, 2024. Yet, the record fails to reflect service of the FAC on or before April 1, 2024.

And while Defendant Khanna has demurred to the FAC, thus implying some kind of service, again, no proof of service relating to the FAC appears in the record.

The Court thus, of its own motion, STRIKES the First Amended Complaint for failure to comply with the Rules of Court regarding service of a complaint and the filing of proof of service therefor within 60 days of the FAC being filed on February 1, 2024, i.e., by Monday, April 1, 2024. (Code Civ. Proc., § 436; Cal. Rules of Court, rule 3.110(b).) This tentative ruling could be obviated by proof of service of the First Amended Complaint at the hearing.

The initial November 15, 2023, Complaint is thus the operative pleading for the purposes of the remaining analyses in this ruling.

III. Motion to Quash Service of Summons: GRANTED.

A. Legal Standard

A motion to quash can be brought on the ground that the court lacks personal jurisdiction over the defendant, e.g., because service was improper. (See Code Civ. Proc., § 418.10, subd. (a)(1); see, e.g., Tresway Aero, Inc. v. Superior Court (1971) 5 Cal.3d 431, 433 [defendant filed motion to quash on ground that service on corporation was defective because it did not comply with Code Civ. Proc., § 410, now § 412.30]; County of Riverside v. Superior Court (1997) 54 Cal.App.4th 443, 446 [defendant filed motion to quash on ground that service was defective because summons did not specify date for answering and appearing].)

The defendant should attach evidence to support its motion. (See School Dist. of Okaloosa Cty. v. Superior Court (1997) 58 Cal.App.4th 1126, 1131 [defendant must present some admissible evidence in form of affidavits or declarations to place issue of lack of jurisdiction before court]; see, e.g., Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 563 [defendant supported motion to quash with declarations]; cf. Floveyor Int’l v. Superior Court (1997) 59 Cal.App.4th 789, 793-794 [“‘A defendant who takes the position that the service of summons as made upon him did not bring him within the jurisdiction of the court’[] may serve and file a notice of motion to quash the service,’” where “‘the effect of such a notice is to place upon the plaintiff the burden of proving the facts that did give the court jurisdiction … [or] the facts requisite to a[] [showing of] effective service,’” citations omitted].)

B. Analysis

1. Service of Summons

On November 18, 2023, according to the proof of service in this case, registered process server John Di Carlo served the summons, Complaint, and other documents on Defendant Khanna by substituted service on “Rohit Khanna – co-occupant” at 706 Tesoro Court, Monterey, California 93940. Plaintiff filed proof of service on December 14, 2023, which attaches a declaration of due diligence from John Di Carlo indicating that DiCarlo only once attempted to serve Defendant Khanna: on November 18, 2023, when substituted service was effected by service on Rohit Khanna. (12/14/23 Proof of Service, pp. 3-6.) Defendant Khanna’s reply clarifies that Rohit Khanna is Defendant Khanna’s father. (Reply, p. 2.)

2. Notes re: General Appearance v. Special Appearance

Defendant Khanna filed his motion to quash as a “specially appearing defendant.”

Though not raised by the parties’ papers, the Court determines this is proper.

Because the FAC has been stricken, Defendant Khanna’s motion to quash service of summons remains operative as to the original Complaint. And because Defendant Khanna filed a motion to quash prior to filing his demurrer rather than vice versa, Defendant Khanna has made no general appearance. (See Code Civ. Proc., §§ 418.10, subd. (e)(3), 1014 [filing of demurrer prior to motion to quash constitutes general appearance].)

3. Court’s Determination

The Court GRANTS Defendant Khanna’s motion for two reasons: (1) Plaintiff’s failure to demonstrate that the process server effected service of the Complaint on November 18, 2023, via substituted service, only after determining that the service papers could not with reasonable diligence be personally served; and (2) Plaintiff’s failure to demonstrate that the address where service was effected was Defendant Khanna’s residence at the time of service.

The Court also discusses two issues raised in the opposition: (1) whether Defendant Khanna is subject to personal jurisdiction in California; and (2) whether the pending motion for appointment of an arbitrator moots this motion to quash.

a. Failure to Establish Reasonable Diligence in Service

To serve an individual by substituted service, the process server must determine that the service papers cannot, with reasonable diligence, be personally served. (Code Civ. Proc., 415.20, subd. (b).) The burden is on the plaintiff to show reasonable diligence. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.)

Whether the process server was reasonably diligent is usually determined on a case-by-case basis; however, two or three attempts of personal service at a proper place will usually satisfy the requirement. (See Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750; Bein v. Brechtel-Jochim Grp. (1992) 6 Cal.App.4th 1387, 1391-1392; see, e.g., Burchett v. City of Newport Beach (1995) 33 Cal.App.4th 1472, 1477-1478 [zero attempts to personally serve D were not sufficient to show reasonable diligence]; Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1391-1392 [three attempts to serve Ds at their home were sufficient to show reasonable diligence when process server, on fourth attempt, left copy of husband's summons with co-D wife].)

Here, the proof of service for service of the Complaint on Defendant Khanna shows that only a single attempt to serve Defendant Khanna was made by the process server. No other attempts at service, let alone personal service, are reflected in the December 14, 2023, proof of service. The Declaration of Diligence does indicate that Defendant Khanna’s father, Rohit Khanna, accepted service of the summons and Complaint and indicated he would give those documents to Defendant Khanna upon next seeing Defendant Khanna. However, such statements by Rohit Khanna do not resolve issues relating to due diligence in attempting personal service on Defendant Khanna himself. (12/14/23 Proof of Service, p. 5 at Judicial Council form MC-031, Declaration of Diligence.)

Plaintiff’s opposition fails to convince the Court otherwise. The Statement of Facts in the opposition does not detail any attempts at service other than on November 18, 2023. (Opp’n, pp. 2-4.) Plaintiff’s opposition appears to concede that the evidence shows that as of November 4, 2023, i.e., before service was made on Defendant’s father in Monterey, Defendant was a resident of Washington, D.C. (Opp’n, p. 4.) The substituted service arguments are more relevant to the next subsection than to the points addressed in this subsection. (Opp’n, pp. 4-5.) And the jurisdiction and mootness arguments raised in the opposition are discussed and found unavailing in the subsection after next. (Opp’n, pp. 5-6.)

b. Failure to Establish Actual Residence at Time of Service

To effect substituted service, a process server must leave the service papers at the individual’s residence, usual place of abode, usual place of business, or usual mailing address other than a U.S. Postal Service post-office box. (Code Civ. Proc., § 415.20, subd. (b); see, e.g., Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1415-1416 & fn. 2 [substitute service at defendant’s parents’ home was ineffective because defendant did not reside there].)

Here, Defendant Khanna argues that he has never lived at the address where service was effected and implies that he was living out of state at the time that service was effected on November 18, 2023. (See Mot., Khanna Decl., ¶¶ 1-4.)

Plaintiff Joyce’s opposition disputes these arguments on the grounds that service was properly effected at Defendant Khanna’s last known address but fails to provide evidence establishing that Defendant Khanna did in fact reside at the 706 Tesoro Court, Monterey, California 93940 residence at the time of service. (Opp’n, pp. 2-5.)

In reply, Defendant Khanna argues that he has and has had no connection to the address where service was effected and that service at a “last known address” does not satisfy service requirements under the Code. (Reply, pp. 4-5.)

The Court finds in favor of Defendant Khanna.

Defendant Khanna’s papers indicate that he has never resided at the address where service was effected and imply that Defendant Khanna resided out of state when service was effected on November 18, 2023. (Mot., Khanna Decl., ¶¶ 1-4.)

This position is consistent with the proof of service itself, which indicates in the Declaration of Diligence: “Bad address per father, Rohit Khanna (Indian male, 65, 5’9”, 185 lbs, grey hair). Subject [i.e., Defendant Khanna] moved to the east coast about 6 weeks ago. [Defendant Khanna] does still get mail here, and Rohit [the person on whom substituted service was made] is leaving on Tuesday to visit with him. [Rohit] asked me to give [Rohit] the documents to give [to Defendant Khanna] when [Rohit] sees [Defendant Khanna], so I [the process server] left the documents with [Rohit].” (12/14/23 Proof of Service, p. 5 at Judicial Council form MC-031, Declaration of Diligence.)

Nothing in the opposition disputes this position, instead framing service as being effected as Defendant Khanna’s “last known address.” Yet, service on a “last known address” is not service at a person’s “dwelling house, usual place of abode, usual place of business, or usual mailing address.” (Code Civ. Proc., § 415.20, subd. (b).) Indeed, service at a “last known address” by substituted service is only proper where the only address reasonably known for the person to be served is a private mailbox obtained through a commercial mail receiving agency (CMRA). (Code Civ. Proc., § 415.20, subd. (c).) And given that the legislature added the “last known address” language to subdivision (c), but not subdivision (b), of Code of Civil Procedure section 415.20, the Court concludes that the legislature intended to omit “last known addresses” as places where service can be effected pursuant to subdivision (b). (People v. Trevino (2001) 26 Cal.4th 237, 242 [“When the Legislature uses materially different language in statutory provisions addressing the same subject or related subjects, the normal inference is that the Legislature intended a difference in meaning”].)

Absent contrary authority from Plaintiff Joyce, the Court finds no reason to determine to the contrary.

c. Opposition Arguments re: Jurisdiction and re: Mootness Based on Arbitration

The Court dismisses the opposition arguments relating to personal jurisdiction. This motion to quash is not based on a lack of personal jurisdiction, but rather, on improper service.

As to mootness, the Court disagrees with Plaintiff Joyce. Plaintiff Joyce summarizes her argument thus: “To the extent that the Court orders the selection of an arbitrator, [Defendant Khanna’s] motion [to quash] and the demurrer are mooted.” (Opp’n, p. 5.)

However, the Court must first determine proper jurisdiction over Defendant Khanna before proceeding with an analysis of the motion to appoint an arbitrator. For this reason, the Court has discussed the motion to quash first. Plaintiff Joyce provides no authority indicating that this Court should decide the merits of the motion for court order appointing an arbitrator prior to deciding the merits of the motion to quash. (See Opp’n, pp. 5-6.)

4. Disposition and Effect on Remaining Motions

For the above reasons, the Court GRANTS Defendant Khanna’s motion to quash service of summons.

Service as purportedly effected on Defendant Khanna by substituted service on November 18, 2023, is thus QUASHED.

Given that the Court lacks jurisdiction over Defendant Khanna, Plaintiff Joyce’s motion for the appointment of an arbitrator and Defendant Khanna’s demurrer are MOOT.

IV. Motion for Order Appointing Arbitrator: MOOT.

As discussed above, because the Court has granted Defendant Khanna’s motion to quash, the Court lacks jurisdiction over Defendant Khanna, for which reason Plaintiff Joyce’s motion for an order appointing an arbitrator is MOOT.

V. Demurrer: MOOT.

As discussed above, because the Court has granted Defendant Khanna’s motion to quash, the Court lacks jurisdiction over Defendant Khanna, for which reason Defendant Khanna’s demurrer is MOOT. 

VI. Conclusion

A. First Amended Complaint

On its own motion, the Court STRIKES Plaintiff Erin Joyce’s First Amended Complaint for failure to comply with California Rules of Court, rule 3.110(b), absent proof of service of same.

B. Motion to Quash

Specially Appearing Defendant Derek Khanna’s Motion to Quash Service of Summons [CRS# 0764] is GRANTED.

The November 18, 2023, service on Defendant Khanna is QUASHED.

C. Motion for Order Appointing Arbitrator

Motion to Obtain Court Order Selecting Plaintiff Erin Joyce Arbitrator [CRS# 2043] is MOOT.

D. Demurrer

Specially Appearing Defendant Derek Khanna’s Demurrer to First Amended Complaint for [Failure to] State a Claim [CRS# 4188] is MOOT.