Department 58

Hearing Date: September 11, 2024

Case Name: Dwell California Real Estate & Investment, Inc. v. Johnny Gill, et al.

Case No.: 24STCV16923

Motion: Motion to Quash Service of Summons

Moving Party: Defendant Johnny Gill

Responding Party: None

Tentative Ruling: The Motion is granted.

On July 9, 2024, Plaintiff Dwell California Real Estate & Investment, Inc. (“Dwell”) filed an action against Defendants Johnny Gill, Compass California, Inc., Kathy Mehringer, Lilach Basson, the Beverly Hills Estates, Inc., Branden Brent Williams, Rayni Romito Williams, Gregory Allan La Plant, Jerica Leanna Juncker Jensen, and Twana Henry, for (1) real estate broker commission, (2) interfering with prospective economic advantage, and (3) tortious interference with contract. Plaintiff’s claims arise from a real estate transaction between the parties.

On August 13, 2024, Defendant Johnny Gill (Gill) moved to quash service of summons (“Motion”). No opposition has been filed.

Legal Standard

“‘Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.’ [Citation.]” (AO Alfa-Bank v. Yakovlev (2018) 21 Cal.App.5th 189, 202.) “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential.” (Kremerman v. White (2021). 71 Cal.App.5th 358, 371.) Defendant’s knowledge of the action does not dispense with statutory requirements for service of summons. (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.)

“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 move “to quash service of summons on the ground of lack of jurisdiction of the court over him or her” that results from lack of proper service. (Code of Civ. Proc., § 418.10, subd. (a)(1)).

“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)

“Evidence Code section 647 provides that a registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration. [Citation.]” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code, § 647.)

Discussion

Defendant Gill specially appears to quash service of summons and complaint on the basis that he was not properly served and, thus, the Court has not acquired personal jurisdiction over him. (Mot. p. 2.)

On August 21, 2024, Plaintiff filed Proof of Service indicating that Gill was personally served with the summons and complaint on July 20, 2024, at 2:28 p.m. at 19237 Charles Street, Tarzana, CA 91356. These papers were served by Brian Essah of South Bay Attorney Service, who is a registered California process server. Pursuant to Evidence Code section 647, the Proof of Service by a registered California process server creates a presumption of proper service.

Gill has submitted his declaration in support of the Motion. He states that he was never served with the summons and complaint as he was in the State of Georgia performing at two concerts on July 20 and July 21, 2024. (Gill Decl. ¶¶ 3-4.) Gill has attached a copy of his flight confirmation receipt showing that he flew from Los Angeles, California, to Atlanta, Georgia, on July 19, 2024. (Id. at ¶ 5, Ex. A.) He has also attached a copy of a flyer to show the concerts scheduled for July 20 and 21 in Stockbridge, Georgia, at 6:00 p.m. (Id. at ¶ 6, Ex. B.) He asserts that he did not return to California until July 28, 2024. (Id. at ¶ 7.)

Defense counsel has also submitted her declaration stating that she informed Plaintiff’s counsel that Defendant Gill had been outside of California on the date of service. (Sedaghatfar Decl. ¶ 3, Ex. B.) Plaintiff’s counsel initially responded to her email asking if she would accept service; she replied that she was not authorized to accept service. (Ibid.) Subsequently, Plaintiff’s counsel sent an email claiming that Defendant Gill had been properly served. (Id. at ¶ 4, Ex. C.)

The Court finds that the Motion was filed timely.

Defendant has presented sufficient evidence to challenge the Court’s personal jurisdiction on the ground of improper service. Thus, the burden shifts to the Plaintiff to establish the existence of jurisdiction through proper service. Plaintiff has not opposed the Motion to present such evidence.

Accordingly, the Court grants Defendant’s Motion to Quash Service of Summons.

Conclusion

The Court grants Defendant Johnny Gill’s Motion to Quash Service of Summons.