Judge: David A. Hoffer, Case: 30-21-01218512Zimmerervs.KoenigJacobsenLLP, Date: 2022-08-01 Tentative Ruling
The Motion to Quash filed by moving and specially appearing parties, Defendants Koenig Jacobsen LLP, Gary Jacobsen, and Wilfred Llaurado (here collectively “MPs”) is GRANTED.
When a defendant challenges personal jurisdiction by bringing a motion to quash, the burden of proof is on the plaintiff to prove by a preponderance of the evidence the validity of the service and the court's jurisdiction over the defendant. (Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 991-992.) In this Motion, MPs assert that they were not properly served, as Plaintiff attempted to serve each of them only by serving "Lori Demato" at the "Koenig Law Firm PC" located at 15635 Alton Parkway, Suite 475, Irvine, California. The burden thus shifted to Plaintiff to demonstrate that such service was valid. Plaintiff has failed to meet that burden here.
Substitute service may be effectuated at an individual’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. (C.C.P. § 415.020(b).) But here, Plaintiff has failed to present evidence sufficient to show that the place where substitute service was allegedly effectuated, as reflected in ROAs 15, 17 and 19, comports with any of those categories for any of the MPs. Emails from a process server as to her legal opinions or conclusions on the subject, as reflected in the Sides Decl. at ¶¶ 3 - 5 and Exs. A and B, do not suffice to meet Plaintiff’s burden.
The Opposition also asserts that while this Motion was pending, substitute service was again attempted for two of the moving defendants: Koenig Jacobsen LLP (“Firm”) and Gary Jacobsen.
For Mr. Jacobsen, Plaintiff attempted to substitute serve on 5/6/22 at 5 Corporate Park #28C, Irvine 92606. (Sides Decl. Ex. D.) But again, Plaintiff has failed to present evidence sufficient to show that this new address was Mr. Jacobsen’s dwelling house, usual place of abode, usual place of business, or usual mailing address, or why service there was otherwise proper.
For Firm, Plaintiff again attempted service at the same address on Alton Parkway, this time directing the summons to “Randall Koenig” as a “Partner” but then actually serving someone else identified as “Attorney in Charge.” (Sides Decl., Ex. C.) Again, Plaintiff here has failed to present evidence sufficient to show that this is the usual place of business or usual mailing address for Firm, or that Mr. Koenig was an appropriate person to serve on behalf of Firm at that time, or to otherwise show why service on an “Attorney in Charge” at this address would be sufficient.
As the burden is on Plaintiff here, and that burden has not been met, the Court GRANTS this Motion. As Plaintiff will thus have to serve each defendant anew, an Order to Show Cause re Service on Defendants and Case Management Conference is set for September 15, 2022 at 9;00 a.m.
Although MPs have prevailed on this Motion in light of the attendant burdens, the evidence presented suggests a lack of meaningful communication and cooperation between counsel. Going forward, counsel are encouraged and expected to meaningfully confer and to cooperate, where possible, to minimize the costs that both sides will otherwise incur in the litigation and avoid unnecessary delays in the proceedings.
MPs’ Evidentiary Objections are SUSTAINED, as to the portions of the material at issue which purport to offer legal opinions and conclusions from Plaintiff’s process server as evidence that service was in fact proper [inadmissible lay opinion], but otherwise OVERRULED.
Counsel for Plaintiff is ordered to give notice of this ruling.