Judge Ashfaq G. Chowdhury, Case Number: 24NNCV03265, Date: 2025-02-19 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 24NNCV03265, Date: 2025-02-19 Tentative Ruling

Case Number: 24NNCV03265 Hearing Date: February 19, 2025 Dept: E

Hearing Date: 02/19/2025 – 8:30am
Case No. 24NNCV03265
Trial Date: UNSET
Case Name: VARDAN TARKHANYAN v. GARY WILLIAM JR. CARRINGTON, KARLA CARRINGTON, and DOES 1-10 inclusive

TENTATIVE RULING ON MOTION TO QUASH SERVICE OF SUMMONS

RELIEF REQUESTED¿¿¿
“Defendant GARY WILLIAM CARRINGTON, JR, erroneously sued as GARY WILLIAM JR. CARRINGTON (hereinafter “Defendant”) appears specially to make this motion and, so specially appearing, will, and hereby does, move for an order quashing the service of summons and complaint on Defendant which was claimed by Plaintiff VARDAN TARKHANYAN (“Plaintiff”) per the initial proof of service filed with this Court on November 7, 2024 and per the amended proof of service filed with this Court on January 3, 2025. The motion will be made on the ground(s) that the court lacks jurisdiction over the person of Defendant. See Code Civ Proc §§ 410.50, 418.10.

The motion will be based on this notice of motion and motion; the supporting declaration Megan K. Hawkins, Esq. filed in support thereof and accompanying exhibits attached thereto, the supporting declaration of Defendant filed in support thereof; the supporting memorandum of points and authorities filed in support thereof; on the records and file herein; and on such evidence as may be presented at the hearing of the motion.”

(Def. Mot. p. 2.)

PROCEDURAL

Moving Party: Defendant, Gary William Carrington, Jr., erroneously sued as Gary William Jr. Carrington

Opposing Party: No Opposition submitted by Plaintiff

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok

Moving Papers: Notice/Motion; Proposed Order

Opposition Papers: No Opposition by Plaintiff

Reply Papers: No Reply submitted

ANALYSIS

Plaintiff, Vardan Tarkhanyan, filed the instant action against Defendants, Gary William Jr. Carrington and Karla Carrington, on 8/1/2024.

On 11/7/2024, Plaintiff filed a proof of service of summons that alleged service by substituted service.

On 1/3/2025, Plaintiff filed an amended proof of service that alleged service by substituted service.

Defendant, Gary William Carrington, Jr., erroneously sued as Gary William Jr. Carrington, moves for an order quashing the service of summons and Complaint on Defendant which was filed with this Court on 11/7/2024 and 1/3/2025.

For purposes of this Court’s ruling, the Court will ignore Defendant’s arguments attempting to quash service regarding the 11/7/2024 proof of service. The Court will ignore Defendant’s arguments because it appears that the arguments for quashing service of summons for the 11/7/2024 proof of service are moot based on Plaintiff filing the amended proof of service on 1/3/2025. Therefore, for purposes of this motion, the Court will only address Defendant’s arguments attacking the amended proof of service filed by Plaintiff on 1/3/2025.

Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387.)

As explained in American Express Centurion Bank v. Zara:

The Code of Civil Procedure specifies the various methods by which service may be made upon defendants who are sued as individuals.

The method described as “personal service” means service that is accomplished “by personal delivery of a copy of the summons and of the complaint to the person to be served.” (§ 415.10.) If the complaint and summons were personally delivered to, i.e., handed to, defendant then he could be said to have been “personally served.”

A defendant may also be “personally” served by delivering a copy of the summons and complaint to an agent authorized to accept service on behalf of that defendant. (§ 416.90; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶¶ 4:128 to 4:132, pp. 4–19 to 4–21; (rev. # 1, 2010) ¶ 4:184, p. 4–27 (rev. # 1, 2004) (hereafter Weil & Brown, Civil Procedure Before Trial).) An authorized agent might include, for example, an attorney who has been expressly authorized to accept service, or a sheriff or jailer having custody of a prisoner. (Weil & Brown, Civil Procedure Before Trial, supra, ¶ 4:128, p. 4–19, ¶¶ 4:130.2, 4:132, pp. 4–20 to 4–21.)

Another alternative available for serving individual defendants is what is commonly known as “substitute service.” Substitute service on an individual is accomplished by “leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address ..., at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the 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.” (§ 415.20, subd. (b).)

However, an individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint “cannot with reasonable diligence be personally delivered” to the individual defendant. (§ 415.20, subd. (b); Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 801, 152 Cal.Rptr. 836.) Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as “ ‘reasonable diligence.’ ” (Weil & Brown, Civil Procedure Before Trial, supra, ¶ 4:196, p. 4–30.)

(American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.)

The 1/3/2025 proof of service of summons alleges proof of service by substituted service.

Defendant argues that Plaintiff did not properly substitute serve Defendant.

Under CCP § 415.20(b), substitute service is effectuated when:

If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the 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. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(CCP § 415.20(b).)

Defendant argues that Plaintiff did not properly effectuate service under CCP § 415.20(b) by arguing that Plaintiff did not first attempt personal service with reasonable diligence.

The Court will hear argument.

Defendant does not give the Court a clear and complete explanation as to what the legal standard is for this motion. Based on the Court’s own research, it appears as if there could be several theories under which the Court could either grant or deny Defendant’s motion.

Theory 1
Defendant cites to Evartt v. Superior Court which states, “[T]he burden is upon the plaintiff to show reasonable diligence to effect personal service and each case must be judged upon its own facts.” (Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 801.)

Defendant then cites to Kott v. Superior Court to explain what is considered “reasonable diligence.”

As explained in Kott v. Superior Court:

Section 415.50, authorizing service by publication specifies this method of service is only warranted when “the party to be served cannot with reasonable diligence be served in another manner specified in this article....” The Judicial Council comment to this section is instructive in defining the showing required before a trial court is justified in finding a party has exercised reasonable diligence in attempting to locate the party to be served. “The term 'reasonable diligence' takes its meaning from the former law: it denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney (See Vorburg v. Vorburg [(1941) 18 Cal.2d 794] at p. 797 [117 P.2d 875]; Stern v. Judson (1912) 163 Cal. 726, 736 [127 P. 38]; Rue v. Quinn [(1902) 137 Cal. 651, at p 657 (70 P. 732)]). A number of honest attempts to learn defendant's whereabouts or his address by inquiry of relatives, friends, and acquaintances, or of his employer, and by investigation of appropriate city and telephone directories, the voters' register, and the real and personal property index in the assessor's office, near the defendant's last known location, are generally sufficient. These are likely sources of information, and consequently must be searched before resorting to service by publication.” (Cal. Judicial Council com., 14 West's Ann. Code Civ. Proc. (1973 ed.) § 415.50, pp. 561-563.) However, the showing of diligence in a given case must rest on its own facts and “[n]o single formula nor mode of search can be said to constitute due diligence in every case.” (Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 333 [150 Cal.Rptr. 855].)

(Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1137-38.)

The Court notes that Kott explains the reasonable diligence standard in the context of service under § 415.50, service by publication. Plaintiff here allegedly effectuated service under § 415.20(b), substitute service.

Defendant here argues he was not substitute served properly because Plaintiff did not use reasonable diligence when first attempting personal service. Defendant argues that since Plaintiff did not use reasonable diligence when first attempting personal service, Plaintiff was thus not allowed to try substitute service.

Defendant argues there was no reasonable diligence in attempting personal service based on the alleged facts of:

On January 3, 2025, a purported amended proof of substitute service was filed by counsel for Plaintiff which contains misrepresentations. (Exhibit 3). In this amended proof of service, it is claimed that: (1) the physical address where Defendant was purportedly served was not the Colfax Address but was instead 6003 Telegraph Road, Commerce, CA 90040 (“the Commerce Address”); (2) the Commerce Address is a business address; (3) on October 29, 2024, November 4, 2024, and November 6, 2024, the Process Server went, not to the Colfax Address as previously declared, but to the Commerce Address and Defendant was again purportedly “not available” and had not been present for a while; (4) on November 6, 2024, the Process Server served Defendant by substituted service by delivering the Summons and the Complaint to Peter Andrade, identified as Defendant’s co-worker /“Yard Dispatcher”; (5) Peter Andrade is identified as a person apparently in charge at the office or usual place of business of Defendant; and (6) the Summons and the Complaint were then mailed to the Commerce Address on December 27, 2024. (Exhibit 3; Decl MKH, ¶6).

In 2024/2025, the Commerce Address is/was the physical address where California Highway Patrol would inspect Defendant’s business equipment when/if necessary. (Declaration Defendant, ¶9). In 2024/2025, the Commerce Address is not/was not the address where Defendant’s business equipment is/was usually garaged. (Declaration Defendant, ¶10). In 2024/2025, the Commerce Address is not/was not a physical location where Defendant would usually or reasonably be expected to be found. (Declaration Defendant, ¶10). In 2024/2025, the Commerce Address is not/was not the usual mailing address for Defendant’s abode/dwelling house nor was it the mailing address for Defendant’s office or usual place of business. (Declaration Defendant, ¶11).

Defendant does not know any person named Peter Andrade. No one named Peter Andrade was in charge of Defendant’s office or usual place of business in 2024/2025. No one named Peter Andrade ever delivered to Defendant a copy of the summons or complaint in connection with the above-captioned litigation. (Declaration Defendant, ¶12).

Defendant has never received, by any delivery method, a copy of the summons or complaint in connection with the above-captioned litigation which had been: (1) delivered to any person present at the Colfax Address; (2) delivered to any person at the Commerce Address; (3) mailed to the Colfax Address; or (4) mailed to the Commerce Address. (Declaration Defendant, ¶13).

Defendant has never been personally served with a summons and complaint in connection with the above-captioned litigation. (Declaration Defendant, ¶14).

(Def. Mot. p. 4-5.)

Defendant also argues there was no reasonable diligence in attempting personal service based on the following alleged facts:

Per the amended proof of service, Plaintiff tried three times to serve Defendant at a physical location used by Defendant when CHP has to inspect his equipment, which is not a location where he can reasonably be expected to be found, and which is not the usual mailing address for his business. The amended proof of service even states that Defendant had not been present for a while at this location. Again, no honest attempts were made to learn Defendant’s actual whereabouts in October/November 2024 to effect personal service.

Moreover, even if Plaintiff could have resorted to substitute service, neither of the purported substitute service is valid. Plaintiff did not, as falsely asserted on both proofs of service, deliver the summons and complaint to a person apparently in charge of Defendant’s office, place of business, or usual mailing address. Such documents were apparently delivered to Peter Andrade, Yard Dispatcher. Defendant does not have a co-worker named Peter Andrade. He does not know anyone named Peter Andrade. Peter Andrade is not a person who was in charge of Defendant’s office or usual place of business in 2024/2025.

Neither the Colfax Address nor the Commerce Address was the usual mailing address for Defendant’s business. Defendant never received by any delivery method, a copy of the summons or complaint in connection with the above-captioned litigation which had been: (1) delivered to any person present at the Colfax Address; (2) delivered to any person at the Commerce Address; (3) mailed to the Colfax Address; or (4) mailed to the Commerce Address. There was no substitute service.

(Def. Mot. p. 8-9.)

Problematic with all of Defendant’s arguments on pages 4-5 and pages 8-9, (regarding issues such as the Commerce address not being the usual place of business, Defendant not knowing who Peter Andrade is, and Defendant never receiving service) is that Defendant does not include a declaration by Defendant. Thus, Defendant offers no proof. Even though pages 4 -5 of Defendant’s motion cites to Defendant’s declaration, there is no declaration of the Defendant attached to any of the moving papers.

Therefore, it appears that if the Court were to grant Defendant’s motion, the basis to grant it would be under the standard under Evartt v. Superior Court which states, “[T]he burden is upon the plaintiff to show reasonable diligence to effect personal service and each case must be judged upon its own facts.” (Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 801.) Here, since Plaintiff did not oppose the motion, it could possibly be argued that Plaintiff never met its burden of showing reasonable diligence to effect personal service.

Theory 2
While Defendant cites to Evartt v. Superior Court to argue that the burden is upon the plaintiff to show reasonable diligence to effect personal service, the Court points the parties attention to Dill v. Berquist Construction Co. which states:

It has been held that the filing of a proof of service creates a rebuttable presumption that the service was proper. (M. Lowenstein & Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 770 [145 Cal.Rptr. 814], quoting from Judicial Council Rep., supra, com. to § 417.10, p. 56; but see Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 255, fn. 7 [211 Cal.Rptr. 517, 695 P.2d 1058], overruling Lowenstein on a related issue.) However, that presumption arises only if the proof of service complies with the statutory requirements regarding such proofs.

(Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442.)

Here, Plaintiff filed a proof of service, and the only basis which Defendant attacks the proof of service is that “reasonable diligence” did not occur under § 415.20(b). However, as the Court previously explained, all of the arguments that Defendant asserted with respect to “reasonable diligence” were not supported by any offer of proof, e.g., a declaration by Defendant.

“Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as “ ‘reasonable diligence.’” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.)

Here, Plaintiff’s proof of service filed on 1/3/2025 alleges attempted personal service on two occasions, 10/29/2024 and 11/4/2024.

Therefore, under theory 2, the Court is inclined to deny Defendant’s motion to quash because Defendant did not submit a declaration by Defendant to attest to any of the arguments that Defendant’s attorney made with respect to Defendant not receiving service.

Theory 3
Through no help of moving Defendant, it appears there may be two potential issues that would lean in favor of granting Defendant’s motion to quash.

Dill v. Berquist Construction Co. states:

(Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442.)

In particular, the Court notes that two or three attempts must be at a “proper place.”

Here, Plaintiff’s proof of service indicates substitute service at the office or usual place of business of the person to be served.

A potential issue here is that for the two attempts of personal service at a business address, Plaintiff’s process server does not indicate the address for attempted service on 10/29/2024. Therefore, it is unclear if the 10/29/2024 address was a “proper place,” because it is entirely unclear where the place was. However, the Court notes that moving Defendant does not point this issue out. In fact, it appears that moving Defendant assumes that both attempts at service were on the 6003 Telegraph address.

Another potential issue to address at the hearing is as follows.

The initial proof of service indicated substituted service on 11/6/2024 at 8:33am at 5844 Colfax Avenue, North Hollywood, CA 91601.

The amended proof of service indicates substituted service on 11/6/2024 at 8:33am at 6003 Telegraph Rd., Commerce, CA 90040.

The Court is curious how Plaintiff’s process server could have been in two different locations at one time.

Further, the Court notes how Plaintiff’s initial proof of service indicated attempted personal service on 11/4/2024 at 1:05pm at 5844 Colfax Avenue, North Hollywood, CA 91601.

However, Plaintiff’s Amended Proof of service also indicates attempted personal service on 11/4/2024 at 1:05 pm at 6003 Telegraph Rd., Commerce, CA 90040.

Again, how can Plaintiff’s process server be at two locations at one time?

Therefore, Plaintiff’s counsel should be prepared to address how the initial and amended proofs of service indicate an attempt at personal service at two different locations at the same time and how the initial and amended proofs of service indicate substituted service at two different locations at the same time.

TENTATIVE RULING
The Court to hear argument. The Court notes that based on the notice page of this motion, the only moving Defendant was Gary William Carrington, Jr. erroneously sued as Gary William Jr. Carrington. Therefore, this ruling only applies to Defendant, Gary William Carrington, Jr. erroneously sued as Gary William Jr. Carrington.