Judge: Anne Richardson, Case: 24STCV01884, Date: 2024-09-03 Tentative Ruling

Case Number: 24STCV01884    Hearing Date: September 3, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

On January 24, 2024, Plaintiff Brian Cruz (Cruz) filed a complaint against Defendants Kaikidan Soloman Adebo (Adebo) and Armen Martiroysan (Martiroysan) (collectively, Defendants) for injuries arising from a motor vehicle accident on July 3, 2022. (Compl., 1/24/2024 PLD-PI-0001.)

On June 18, 2024, Defendant Adebo filed an Answer.

As of this hearing, Defendant Martiroysan has not filed an Answer.

B. Motion Before the Court

On April 25, 2024, Defendants filed a motion to quash service alleging that service was improper because neither of them live at the address at which they were purportedly served. (Mot. p. 2.)

On July 8, 2024, Cruz opposed the motion arguing that the motion is moot as to Adebo because she filed an Answer to the Complaint on June 18, 2024. (Opp. p. 4) Cruz also opposes the motion on the ground that the hearing date was designated more than 30 days after filing of the notice, in violation of Code of Civil Procedure § 418.10(b), and is thus, a delay tactic. (Opp. p. 4.) Next, he argues that the Defendants had actual notice of the lawsuit and thus there is no prejudice. (Opp. p.5.) Finally, he argues that an occupant of the household accepted service on behalf of the Defendants. (Opp. p. 6.)

On July 15, 2024, the Defendants filed a reply. They concede that the motion is moot as to Adebo because she was personally served on May 23, 2024. (Reply p. 2.) They argue that the 30-day rule in Code of Civil Procedure section 418.10 does not deprive the court jurisdiction to hear this motion, and that actual notice of a lawsuit does not convey jurisdiction. (Reply pp. 2-4.)

The Defendants’ motion is now before the Court. Defendant Adebo was personally served on May 13, 2024. She filed an Answer to the Complaint on June 18, 2024. Because both parties concur that the motion to quash is moot as to Adebo, the Court only discusses the motion as to Martirosyan.

II. Motion to Quash Service of Summons

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 March 17, 2024, according to the proof of service in this case, a registered process server served the summons, Complaint, and other documents on Martirosyan by substituted service on “Zege Banyana – Occupant” at 1546 S. Wilton Place Apt. 101, Los Angeles, California 90019. Cruz filed proof of service on March 19, 2024, which attaches a declaration of due diligence indicating that the process server made just one previous attempt to serve Martirosyan. (03/19/24 Proof of Service, p. 3.) Martirosyan states that he has never lived at the address on Wilton Place. (Mot. p. 3., Martirosyan Decl. ¶¶ 6-9.)

2. Code. Civ. Proc. § 418.10(b)

            Cruz contends that the Defendant’s motion violates Code Civ. Proc. § 418.10(b) because the motion was filed on April 25, 2024, but was set for hearing on July 22, 2024. The hearing is taking place beyond thirty days after filing of the notice. Pursuant to Code Civ. Proc. § 418.10(b), “[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: . . . (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” In Olinick v. BMG Entertainment, the court held that a tardy hearing on a motion to stay or dismiss under § 418.10 does not deprive a court of jurisdiction to consider the merits of the motion. ((2006) 138 Cal.App.4th 1286, 1296.) While not a motion to stay or dismiss, the motion to quash service of summons is also brought under § 418.10 and may also be brought “within any further time that the court may for good cause allow.” Martirosyan argues that the hearing was set for the first available date on the Court’s calendar. (Reply, p. 3.)

Since an earlier hearing date was unavailable on the Court's calendar, the Court will consider the motion on the merits.

3. Effective Service

When a defendant argues that service of summons did not bring him within the trial court’s jurisdiction, the plaintiff has “the burden of proving facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.)

Here, Cruz argues that because an occupant of the Wilton Place apartment accepted service on Martisoyan’s behalf, service was proper. (Reply p. 2.) Martirosyan states that he has never lived or worked at the Wilton Place address, and that he does not know the person who was served on his behalf. (Martirosyan Decl. ¶¶ 6-9.) Cruz argues that “Surely, had Ms. Banyana [the occupant] not had any relationship with defendant Adebo or Martirosyan she would have refused to accept service of time sensitive legal documents.” (Reply p. 6.) However he does not provide evidence establishing that Martirosyan did in fact reside at the Wilton Place address.

In addition, 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.)

Here, according to the proof of service on file with the Court, the process server only made one previous attempt to personally serve Martirosyan. (03/19/24 Proof of Service, p. 3.)

Finally, Cruz argues that Martirosyan had actual knowledge of the lawsuit and thus there is no prejudice. (Reply, p. 5.) “Actual notice of the action alone, however, is not a substitute for proper service and is not sufficient to confer jurisdiction. “[N]o California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service.” (Am. Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 392.)

Thus, service was not proper to Martirosyan because Cruz has failed to demonstrate that the address where service was effected was Martirosyan’s address, and further Cruz has failed to demonstrate that the process server was reasonably diligent in attempting personal service before effecting substituted service on March 17, 2024. 

Conclusion

Defendants’ Motion to Quash Service of Summons and Complaint is DENIED, as moot, as to Defendant Kaikidan Soloman Adebo.

Defendants’ Motion to Quash Service of Summons and Complaint is GRANTED as to Defendant Armen Martirosyan.