Judge: David B. Gelfound, Case: 23CHCV03824, Date: 2024-10-04 Tentative Ruling

Case Number: 23CHCV03824    Hearing Date: October 4, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION

Motion filed: 7/24/24

MOVING PARTY: Special appearing Cross-Defendant Garlyn O. Shelton Inc. d/b/a BMW of Temple

RESPONDING PARTY: None

NOTICE: OK.¿¿¿ 

RELIEF REQUESTED: An order from this Court quashing service of Summons

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

On December 15, 2023, Plaintiff Fifth Third Bank, National Association (“Plaintiff” or “Fifth Third Bank”) filed a Complaint against Defendant/Cross-Complainant Aminah Ssenyondo (“Defendant/Cross-Complainant” or “Ssenyondo”), and Does 1 through 15, alleging breach of contract. Plaintiff claims that Ssenyondo failed to repay the monies loaned for financing of a motor vehicle sale. (Compl. PLD-C-001(1) “BC-2”) Subsequently, Ssenyondo filed an Answer to the Complaint on January 29, 2024.

On June 10, 2024, Defendant/Cross-Complainant Ssenyondo filed a Cross-Complaint against Cross-Defendant Garlyn O. Shelton Inc. d/b/a BMW of Temple (“Cross-Defendant” or “BMW of Temple”), and Does 1 to 50, alleging the following causes of action: (1) Partial Indemnity and Apportionment of Fault, and (2) Declaratory Relief.

On July 24, 2024, BMW of Temple filed the instant Motion to Quash Service of Summons for Lack of Personal Jurisdiction (the “Motion”)

No Opposition or Reply papers have been received by the Court.

ANALYSIS

Code of Civil Procedure section 418.10, subdivision (a), provides in pertinent part, “A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her....”

A.    Service of Process on Cross-Defendant

“In an action against a corporation or an unincorporated association (including a partnership), the copy of the summons that is served shall contain a notice stating in substance: ‘To the person served:¿ You are hereby served in the within action (or special proceeding) on behalf of (here state the name of the corporation or the unincorporated association) as a person upon whom a copy of the summons and of the complaint may be delivered to effect service on said party under the provisions of (here state appropriate provisions of Chapter 4 (commencing with Section 413.10) of the Code of Civil Procedure).’ If service is also made on such person as an individual, the notice shall also indicate that service is being made on such person as an individual as well as on behalf of the corporation or the unincorporated association.” (Code Civ. Proc., § 412.30.)

“A summons may be served on a corporation by delivering a copy of the summons and the complaint by any of the following methods: (a) To the person designated as agent for service of process ... (b) 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. (c) [inapplicable] (d) If authorized by any provision in Section 1701, 1702, 2110, or 2111 of the Corporations Code[.]” (Code Civ. Proc., § 416.10.)   

“[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)  “[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.)  When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.”  (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.)  “A court lacks jurisdiction over a party if there has not been proper service of process.”  (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.) 

Here, BMW of Temple argues that the Defendant/Cross-Complainant’s Summons was improper and invalid because it failed to provide the required notice regarding the corporation and was not served on its registered agent or a person authorized to accept service of process. (Mot. at p. 5.)

BMW of Temple’s counsel, Manuel Saldana (“Saldana”), presents a true and correct copy of the Summons and Cross-Complaint filed by Ssenyondo on June 10, 2024, pointing out that the Summons is blank with regard to the person being served and in what capacity. (Saldana Decl. ¶ 3.) Additionally, BMW of Temple’s Chief Financial Officer, Tanya Holekamp (“Holekamp”), attests that BMW is an S-Corporation incorporated in Texas, and its registered agent for service of process is Garlyn O. Shelton located at its principal place of business at 5625 S. General Bruce Dr. Temple, TX 76502. (Holekamp Decl. ¶¶ 2-3.) However, the Summons and Cross-Complaint were delivered to BMW of Temple’s business address at 6006 S. General Bruce Dr. Temple, TX 76502, without including the name of an individual authorized to accept service of process on behalf of BMW of Temple. (Id. ¶ 7.)

Based on the above evidence, the Court finds Defendant/Cross-Complainant’s service of Summons and Cross-Complaint did not comply with the requirements outlined in Code of Civil Procedure sections 412.30 and 416.10, subdivision (a).

When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.”  (Coulston v. Cooper, supra, 245 Cal.App.2d at p. 868.)

Here, Defendant/Cross-Complainant has failed to file an Opposition, thereby waiving the issues raised in the Motion and failing to meet his burden of proving the facts requisite to an effect service.

B.     The Court’s Personal Jurisdiction over Cross-Defendant

The extent to which a California court can exercise personal jurisdiction over a defendant depends on the nature and quality of defendant’s “contacts” with the state.¿ U.S. Supreme Court decisions recognize two types of jurisdiction: (1) “general” and (2) “specific.” (See¿Bristol-Myers Squibb Co. v. Sup.Ct. of Calif., San Francisco County¿(2017) 582 U.S. 255, 262¿(Bristol-Myers);¿Ford Motor Co. v.¿Montana Eighth Judicial Dist. Ct.¿(2021) 141 S.Ct. 1017, 1024.)¿ 

General jurisdiction requires¿“substantial . . . continuous and¿systematic” contacts¿with California, i.e., the defendant’s contacts with the forum are so wide-ranging that they take the place of a physical presence¿in the state.  (Vons Companies Inc. v. Seabest Foods, Inc. (1996) 16 Cal.4th 434, 452.)  Specific jurisdiction exists where contacts are insufficient for¿general jurisdiction, but the contact is related to the cause of action presented. (Epic Communications, Inc. v. Richwave Technology, Inc.¿(2009) 179 Cal.App.4th 314, 327.)

Although the defendant¿is the moving party on a motion to quash service of process, the burden of proof is on the plaintiff in opposing the motion: “[W]hen jurisdiction is challenged by a nonresident defendant, the burden of proof is upon the plaintiff to demonstrate that ‘minimum contacts’ exist between defendant and the forum state to justify imposition of personal jurisdiction.” (Mihlon v. Sup.Ct. (Mihlon)¿(1985) 169 Cal.App.3d 703, 710;¿Floveyor Int'l, Ltd. v. Sup.Ct. (Shick Tube-Veyor Corp.)¿(1997) 59 Cal.App.4th 789, 793;¿Elkman v. National States Ins. Co.¿(2009) 173 Cal.App.4th 1305, 1313.)  The burden is on the plaintiff to demonstrate by a preponderance of the evidence that all jurisdictional criteria are met. (Ziller Electronics Lab GmbH v. Sup.Ct. (Grosh Scenic Studios)¿(1988) 206 Cal.App.3d 1222, 1232.)  If plaintiff meets this burden, “it becomes the defendant’s burden to demonstrate that the exercise of jurisdiction would be unreasonable.” (Buchanan v. Soto¿(2015) 241 Cal.App.4th 1353, 1362;¿Swenberg v. Dmarcian, Inc.¿(2021) 68 Cal.App.5th 280, 291.)

Jurisdictional facts must be proved by admissible evidence. This generally requires documentary evidence and declarations by competent witnesses. (Rivelli v. Hemm¿(2021) 67 Cal.App.5th 380, 402;¿In re Automobile Antitrust Cases I & II¿(2005) 135 Cal.App.4th 100, 110.) 

Here, there is no general jurisdiction over BMW of Temple in California. This is because Cross-Defendant is incorporated and has its principal place of business in Texas. It has no corporate operations within the State of California. BMW of Temple has not performed any service on or provided any parts for the vehicle since it was delivered on or about April 28, 2021. ((Holekamp Decl. ¶ 6.)

Accordingly, the Court finds that there is no evidence supporting any physical presence of Cross-Defendant in the forum. Nor has Ssenyondo presented any evidence to establish BMW of Temple’s substantial, continuous, and systematic contacts with California. Therefore, the Court concludes that there is no general jurisdiction over BMW of Temple.

Here, BMW of Temple also argues that the Court lacks specific jurisdiction over it. First, Cross-Defendant has not purposefully availed itself of the benefits of California. The only connection with California is the existence of a vehicle in California that was sold and delivered by it in Texas. Second, the alleged action in the Cross-Complaint does not arise out of or related to BMW of Temple’s conduct. The Cross-Complaint arises out of the purchase, sale and delivery of vehicle by Cross-Defendant to the Cross-Complaint in Texas. The contract for the sale of the vehicle was entered into in Texas pursuant to the laws of Texas. (Holekamp Decl. ¶ 5.)

The Court finds that there is no evidence supporting that BMW of Temple purposefully availed itself of forum benefits, and the controversy is neither related to nor arise out of Cross-Defendant’s contacts, if any, with the forum. Therefore, the Court determines that it lacks specific jurisdiction over Cross-Defendant.

Furthermore, Defendant/Cross-Complainant has not met his burden by failing to file an Opposition or present any evidence. (See e.g., Mihlon, surpa,¿169 Cal.App.3d at p. 710, [When jurisdiction is challenged by a nonresident defendant, the burden of proof is upon the plaintiff to demonstrate that ‘minimum contacts’ exist between defendant and the forum state to justify imposition of personal jurisdiction.])

Based on the foregoing, the Court GRANTS the Motion.

CONCLUSION

Special appearing Cross-Defendant Garlyn O. Shelton Inc. d/b/a BMW of Temple’s Motion to Quash Service of Summons for Lack of Personal Jurisdiction is GRANTED.

Moving party to give notice.