Department 58

Hearing Date: July 20, 2023

Case Name: BHLA13 LLC v. Joshua Macciello

Case No.: 23STCV07510

Matter: Motion to Quash Service of Process

Moving Parties: Specially Appearing Defendant Joshua Macciello

Responding Party: Plaintiff BHLA13, LLC

Tentative Ruling: The motion to quash service of summons is granted based on improper service.

On April 5, 2023, Plaintiff BHLA13 LLC (Plaintiff) filed a complaint alleging a breach of the lease and common counts against Defendant Joshua Macciello (Defendant).

On June 20, 2023, Defendant moved to quash service of process. He argues that the process server left a copy of the summons and complaint at a location that is not his usual place of abode, business, or mailing address, and did not deliver the summons and complaint to the person in charge. Plaintiff opposes the motion.

The Court grants Defendant’s motion to quash service of summons.

Legal Standard

“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440; accord Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160 [“It was incumbent upon plaintiff, after the filing of defendant’s motion to quash, to present evidence discharging her burden to establish the requisites of valid service on defendant”].) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper,” but only if it “complies with the statutory requirements regarding such proofs.” (Id. at pp. 1441-1442.)

A plaintiff may substitute serve an individual, but there must be strict requirements with the statutory requirements. (Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 799.) Thus, if a copy of the summons and complaint “cannot with reasonable diligence be personally delivered to the person to be served,” then substitute service under Code of Civil Procedure section 415.20 may be allowed.

Plaintiff carries the burden of proving valid service. (See Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868; BBA Aviation PLC v. Superior Court (2010) 190 Cal.App.4th 421, 428-29.)

Discussion

Here, Plaintiff filed a proof of service on May 11, 2023, indicating that the process server effectuated substitute service on “Jane Doe.” The Affidavit of Due Diligence separately filed indicates that three attempts of personal service were made on May 5, 8, and 9^that 200 S Virginia St 8th Floor, Reno, NV 89501 (Reno Address). The Affidavit of Due Diligence also indicates that “Jane Doe” informed the process server that Defendant was a “virtual client of Regis executive suite.”

In moving to quash service of the summons and complaint, Defendant argues the service effectuated was fatally defective. Defendant submits his own declaration stating he is not a client of Regus Executive Suite, does not have an office there, is not physically there, and does not pick up any physical mail. (Macciello Decl., ¶¶ 3-5.)

In Opposition, Plaintiff submits evidence that Defendant is a manager and agent for service of process of Global Ascension Studios, LLC, a Nevada limited liability company (Global Ascension), which identifies its address as the Reno Address. (Rosenbaum Decl., ¶ 6, Ex. 2.) In particular, the public records for Global Ascension on the Nevada Secretary of State website (updated on February 13, 2023) show Defendant’s title as “manager” and “agent for service of process” for Global Ascension at the Reno Address. (Rosenbaum Decl., ¶ 6, Ex. 2.) Moreover, in a lawsuit filed on January 3, 2023 in Los Angeles Superior Court Case No. 23STCV00086 against Global Ascension and Defendant, Defendant was served on behalf of Global Ascension at the Reno Address. (Rosenbaum Decl., ¶ 7, Ex. 4.)

Although Defendant argues in reply that he never filled out an IMDB employment infomaiton on this third party website that Plaintiff also attaches as evidence of Defendant’s address, and argues that he was not properly served in the other unrelated lawsuit—Defendant does not dispute his employment with Global Ascension or the business address as stated in the Nevada State business website. (Macciello Reply Decl., ¶ ¶ 1-4.) Accordingly, the Court finds Plaintiff’s evidence is adequate to demonstrated that the Reno Address is Defendant’s place of business and was a proper address for service under Code of Civil Procedure section 415.20.

However, Plaintiff’s proof of service does not indicate that a copy of the summons and complaint were left with a “person apparently in charge” of Defendant’s office or place of business.

As noted above, California law permits substituted service by leaving a copy of the summons and complaint at the defendant's dwelling house, 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).) Copies of the summons and complaint must be left “in the presence of a competent member of the household or a person apparently in charge of [the defendant's] office, place of business, or usual mailing address,” and copies must thereafter be mailed to the defendant at the same address where the documents were left. (Code Civ. Proc. § 415.20, subd. (b).)

Here, the proof of service indicates that documents were served on “Jane Doe, employee.” Neither the proof of service nor the Affidavit of Due Diligence give any indication that the process server held any belief that Jane Doe was the “person in charge.” Further, Defendant’s evidence from the person identified as “Jane Doe” states that she informed the process server that she was “not authorized to accept service on anyone’s behalf, as an employee of Regus” and at no time was she “apparently in charge at the office or usual place of business of the person to be served.” (Confer Decl., ¶¶ 3-8.) Finally, even Plaintiff’s own evidence—the proof of service in the LASC No. 23STCV00086 lawsuit—identifies a different person in charge; the proof of service identified the person served as “Mike Shinn - clerk - Person In Charge of office.” (Rosenbaum Decl., ¶ 8, Ex. 4.)

Plaintiff’s evidence does not show compliance with Code of Civil Procedure section 415.20.

Conclusion

For these reasons, Plaintiff has not met its burden to establish valid service of process and the motion to quash is granted.