Judge Bruce G. Iwasaki, Case Number: 24STCV12228, Date: 2024-11-20 Tentative Ruling

Tentative Ruling: Defendant’s motion to quash service of process is denied.

This is action arises from an alleged breach of the terms of a medical lien agreement. The Complaint alleges causes of action for (1.) breach of contract, (2.) quantum meruit, (3.) unjust enrichment, and (4.) conversion.

On July 9, 2024, Specially Appearing Defendant M&Y Personal Injury Lawyers moved for an order quashing service of the summons and complaint. Plaintiff Dream Anesthesia opposes the motion. Defendant M&Y replied.

Defendant’s motion for order to quash service of summons and complaint is denied.

Plaintiff’s objection to the declaration of Nick Movagar is sustained. Defendant’s objection to the declaration of Alan Nesbit is sustained.

“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.)

Code of Civil Procedure section 416.10 permits service on a corporation by serving an individual or entity designated as an agent for service of process (§ 416.10, subd. (a)); serving one of the 11 officers or managers of the corporation specified in section 416.10, subdivision (b); serving a person authorized by the corporation to receive service (§ 416.10, subd. (c)); or service in a manner authorized by the Corporations Code (Code Civ. Proc., § 416.10, subd. (d)).

Additionally, Section 415.20 permits substitute service on a person specified in section 416.10 by leaving the summons and complaint “in his or her office ... with the person who is apparently in charge thereof.” (Code Civ. Proc., § 415.20, subd. (a).)[1]

Here, the proof of service at issue purports to serve Steven Yasmin, by effectuating substituted service on a “John Doe” security guard in the lobby of 6300 Wilshire Blvd 807, Los Angeles, CA 90048 on June 24, 2024 at 12:16 pm.

Citing Code of Civil Procedure section 415.10, Defendant argues this service was improper.

First, Defendant questions why Plaintiff failed to serve Nick Thomas Movagar, Defendant’s registered agent for service of process, Chief Executive Officer, and Secretary. Defendant cites no legal authority showing that Plaintiff was required to first attempt service on the registered agent for service of process. In fact, the statute specifically allows service on any of the persons listed in Code of Civil Procedure section 416.10. (See Code Civ. Proc., § 416.10, subd. (b) [authorizing service to “the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process”].)

Here, Defendant’s evidence shows Steven Yamin is Defendant’s Chief Financial Officer. (Movagar Decl., ¶ 4, Ex. B.) Moreover, Defendant’s Statement of Information, which is on-file with the California Secretary of State, lists the Principal Address of Defendant as 6300 Wilshire Blvd, Suite 807, Los Angeles, California 90048. (Movagar Decl., ¶ 4, Ex. B.) Thus, the evidence before the Court shows an adequate connection between the address served and the party alleged to be served. (Corcoran v. Arouh (1994) 24 Cal.App.4th 310, 315 [“It is crucial that a connection be shown between the address at which substituted service is effectuated and the party alleged to be served.”].)

Next, Defendant argues that the service was defective because there is no evidence of a good faith effort at personal service before substituted service was effectuated. Specifically, Defendant argues that the law requires a showing that the summons and complaint “cannot with reasonable diligence be personally delivered’ to the individual defendant.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.)

Here, service was attempted at Defendant’s office building at 12:15 p.m. on Monday, June 24 2024, in the middle of a business day. The process server affidavit represents that the security guard refused entrance to the process server, even after the process server’s credentials were provided. This affidavit, however, shows only one attempt at personal service before substitute service was effectuated.

Ordinarily, two or three attempts at personal service at a proper place is required to fully satisfy the requirement of reasonable diligence and allow substituted service to be made. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 545.) However, the law does not require attempts that are futile. (See e.g., Ibid. [finding that it was futile to attempt substituted service at a residence where the defendant no longer lives].) Thus, no single formula or mode of search constitutes reasonable diligence in every case, which must rest on its own facts. (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1138.)

In Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, for example, the Court of Appeal found that a guard at the entrance of a gated community can be considered a competent member of the household and the person in charge under section 415.20, because the guard’s relationship to the defendants made it more likely than not that he would deliver the papers to them. (Bein, at p. 1393.) The Bein Court thus observed, “Litigants have the right to choose their abodes; they do not have the right to control who may sue or serve them by denying them physical access.” (Ibid.) However, the Court of Appeal found substitute service was proper on this party only after the process server “made three separate attempts to serve the Brechtels at their residence” and “[e]ach time, the gate guard denied access.” (Ibid.)

Similarly, on Khourie, Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009, a process server attempting service on a corporation attempted to enter the corporation's place of business in order to serve its agent. (Id. at 1012.) The door of the business was locked, and when the process server rang the bell a woman came to the door, refused to unlock it, and stated that she was unwilling to accept the documents. (Id.) The process server left the documents outside the locked door in plain view of the woman and then mailed copies to the entity at its place of business. (Id.) The court held that substitute service was proper because “the process server attempted to leave a copy of the summons and complaint during usual office hours with the person apparently in charge of [the corporate defendant's] office – i.e., the only person who responded to his attempt to enter.” (Id. at 1013.) Importantly, in this case, only one attempt was made to personally serve the defendant.

Here, the evidence from the process server suggests that multiple attempts at service on this address – the address listed in the corporations Statement of Information – would be futile. That is, if a security guard would refuse access during normal business hours, the process server would be equally successful at other times and days. Because the law does not require futile acts (Civil Code § 3532), this one attempt at service was sufficient to show due diligence.

Finally, Defendant appears to challenge the veracity of the proof of service by suggesting none of the security staff in the building recall being served with a complaint on June 24, 2024. (Movagar Decl., ¶ 5.) However, as the Court noted in its ruling on evidentiary objections, notwithstanding Defendant’s arguments, this evidence is based on inadmissible hearsay and lacks personal knowledge.

[1] If the proof of service fails to identify any such person, however, it is defective. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1435-1436.)

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