Judge Daniel M. Crowley, Case Number: 23STCV17350, Date: 2024-01-26 Tentative Ruling

Defendant University of Southern California’s motion to quash service of summons is granted.

Defendant University of Southern California [erroneously sued as USC Department of Public Safety] (“USC”) (“Defendant”) moves for an order quashing service of the summons on the grounds Plaintiff Jeffrey Ito (“Ito”) (“Plaintiff”) erroneously named “USC Department of Public Safety,” which is an improperly named party, and service of Summons and Complaint was not made according to any of the statutorily authorized methods for service. (Notice of Motion, pg. 2; C.C.P. §418.10(a)(1).)

On July 25, 2023, Plaintiff filed the operative Complaint and Summons on Complaint against Defendant. On August 14, 2023, Plaintiff served Defendant with the Complaint and Summons by personal service. (See Decl. of Hogoboom ¶4, Exh. A.) Plaintiff filed a proof of service for the Complaint on September 13, 2023.

On September 13, 2023, Defendant filed the instant motion. On December 18, 2023, Plaintiff filed his opposition. On January 2, 2023, Plaintiff filed a second opposition, which also does not include proof of service on Defendant. On January 19, 2024, Defendant filed its reply.

“A defendant, on or before the day of his or her time to plead . . . may serve and file a notice of motion . . . [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (C.C.P. §418.10(a)(1).) By filing such motion, “a defendant makes a special appearance for the narrow purpose of contesting personal jurisdiction where the summons is defective.” (Stancil v. Superior Court (2021) 11 Cal.5th 381, 393.)

“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.” (Floveyer International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 793; see also Calvert v. Al Binali (2018) 29 Cal.App.5th 954, 961 [“To establish personal jurisdiction, it is essential to comply with the statutory procedures for service of process.”].) “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.” (Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160, internal quotations omitted.)

California Rules of Court, Rule 3.110(b) provide that a summons and complaint must be served on each defendant and a proof of service on each defendant must be filed with the court within 60 days after the complaint is filed. Proof of such service must be made by affidavit of the person making the service “showing the time, place, and manner of service” and including facts showing service was made in accordance with California law. (C.C.P. §§417.10(a), 417.30.) Proof of personal service must be made on a form adopted by the Judicial Counsel. Id. § 417.10(f).

“A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served.” (C.C.P. §415.10.) “‘[P]ersonal service,’ generally speaking, means the actual delivery of the process to the defendant in person . . . .” (Wilson v. Eddy (1969) 2 Cal.App.3d 613, 617.) Personal delivery is the “preferred way to serve a defendant” because it “is the most likely to ensure actual notice to the defendant.” (Board of Trustees of Leland Stanford Junior University v. Ham (2013) 216 Cal.App.4th 330, 336.)

Plaintiff declares the Summons and Complaint were personally served on the USC Department of Public Safety by Marva Miguel, Secretary, on August 14, 2023, by Miryam Gutierrez of the Sheriff’s Office. (Decl. of Ito ¶7.) While Plaintiff demonstrated he followed the procedures to file proof of service of summons, Plaintiff has not met his burden to demonstrate service on USC was proper.

California law has long held that an individual who is not named by either their true or fictitious name or as an unknown defendant is not a proper party, “and service of summons upon such . . . upon proper motion should be quashed.” (Kline v. Beauchamp (1938) 29 Cal.App.2d 340, 342.) Plaintiff appears to be attempting to sue and serve USC, but named “USC Department of Public Safety,” which is not an existing legal entity. Therefore, Plaintiff did not correctly name USC in this lawsuit and service of summons must be quashed.

Effecting service on a corporation requires delivery of summons and complaint to some person on behalf of the corporation. (C.C.P. §416.10; Dill v. Berquist Construction Co., Inc. (1994) 24 Cal.App.4th 1426, 1437.) It must appear from the allegations of the complaint and summons that the defendant is in fact a corporation. Otherwise, no one can be served on its behalf (i.e., as a representative of the corporation). (Earl W. Schott, Inc. v. Kalar (1993) 20 Cal.App.4th 943, 946.)

Service may be made upon “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, [or] a general manager.” (C.C.P. §416.10(b).) Service is valid if the person served as “general manager” is apparently in charge of the corporation’s office or headquarters, if the person served is of such rank to make it reasonably certain that the corporation will be apprised of service. (See Roehl v. Texas Co. (1930) 107 Cal.App. 691, 705; Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 302-303.)

Service may also be made upon “a person authorized by the corporation to receive service of process.” (C.C.P. §416.10(b).) This includes persons who are designated as the corporation’s agent for service of process in various statements which a domestic or foreign corporation is required to file with the Secretary of State under various provisions of the Corporations Code. (See C.C.P. §416.10(a).) California corporations are required to appoint a local agent for service of process in their articles of incorporation and biennial information statement filed with the Secretary of State. (See Corps. Code §202(c), §1502(b).)

The authority to accept service may be actual or implied (ostensible). Thus, where the corporation holds a certain person out as one of its principal officers, that person may be held to have ostensible authority to receive service of summons on the corporation’s behalf even if such person actually held no office at the time. (Pasadena Medi-Center Associates v. Superior Court (1973) 9 Cal.3d 773, 777.)

The fact a person is authorized to receive mail on behalf of a corporation and to sign postal receipts acknowledging delivery does not mean he or she is authorized to receive process on behalf of the corporation that is served by mail. (Dill, 24 Cal.App.4th at pg. 1437.)

Here, Plaintiff failed to meet his burden to demonstrate Marva Miguel was authorized to accept service on behalf of USC. Marva Miguel is not designated as USC’s agent for service of process based on USC’s filing with the Secretary of State, nor is she “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, [or] a general manager.” (C.C.P. §416.10(b).) Further, the secretary of USC’s Department of Public Safety does not have the ostensible authority to accept service on behalf of all of USC.

Hon. Daniel M. Crowley

Judge of the Superior Court