Judge: Cherol J. Nellon, Case: 22STCV28655, Date: 2023-04-18 Tentative Ruling

Case Number: 22STCV28655    Hearing Date: April 18, 2023    Dept: 28

Specially Appearing Defendant Daniel Sabzerous’s Motion to Quash Service of Summons and Complaint

Having considered the moving and opposing papers, the Court rules as follows.

BACKGROUND

On September 1, 2022, Plaintiff John Berry (“Plaintiff”) filed this action against Defendant Daniel Sabzerou (“Defendant”) for motor vehicle negligence and general negligence.

On January 11, 2023, Specially Appearing Defendant filed a Motion to Quash Service of Summons to be heard on April 18, 2023. On April 5, 2023, Plaintiff filed an opposition.

Trial is currently scheduled for February 29, 2024

PARTY’S REQUESTS

Defendant requests the Court quash service of summons and complaint.

Plaintiff requests the Court deny the motion.

LEGAL STANDARD

A plaintiff has the initial burden to establish valid statutory service of a summons and complaint. (Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439-40; Floveyor Internat. v. Sup. Ct. (1997) 59 Cal.App.4th 789, 794.)

A defendant may file a motion to quash a service of summons on the ground of lack of jurisdiction of the court over said defendant. CCP § 418.10 (a). A motion made under CCP § 418.10 does not constitute an appearance unless a court denies the motion.

“Although a proper basis for personal jurisdiction exists and notice is given in a manner which satisfied the constitutional requirements of due process, service of summons is not effective and the court does not acquire jurisdiction of the party unless the statutory requirements for service of summons are met.” (Engebretson & Co. v. Harrison (1981) 125 Cal. App. 3d 436, 443.)

CCP 415.20(b) provides: “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.

DISCUSSION

Plaintiff alleges that, after failing to personally serve Defendant, he served Defendant via substituted service by leaving a copy of the summons and complaint at Defendant’s usual place of business with the receptionist, Janessa Amador (“Amador”). Plaintiff then mailed the summons and complaint to Defendant at said address.

Defendant alleges that substituted service was defective, as there is no proof Amador was authorized to accept service on Defendant’s behalf. Defendant works in a multi-story office tower that houses multiple businesses and receptionist areas; Plaintiff’s service papers do not indicate that Amador was a receptionist for Defendant’s specific place of employ. Defendant also states there is no indication that Amador would be considered a “person apparently in charge of his or her office [or] place of business...” Defendant finally argues he never received any paperwork via mail. None of these allegations are supported by Defendant’s declaration.

Plaintiff argues that, prior to serving Amador, the process server confirmed that Amador was the receptionist for Defendant’s business. This was confirmed with both the building security guard and Amador herself, with Amador confirming that Defendant worked at that

specific location. The Court notes that Defendant never affirmatively states that Amador was not a receptionist for his place of business, nor does he state she was not the proper person to serve; thus, there does not appear to be a clear allegation to the contrary.

Plaintiff’s proof of service indicates that Defendant was then served via mail; CCP §415.20(b) deems a party served on the 10th day after mailing—not after delivery. Thus, proof of service is sufficient to establish compliance with CCP requirements.

The Court finds that service complied with the CCP requirements. There is no evidence actually offered to the contrary, merely general questions into the validity of Amador. The Court denies the motion.

CONCLUSION

Specially Appearing Defendant Daniel Sabzerous’s Motion to Quash Service of Summons and Complaint is DENIED.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.