Judge: Deborah C. Servino, Case: 30-2023-01319196, Date: 2023-08-18 Tentative Ruling

Specially appearing Defendant Masoud Shirzadegan dba A Quality Auto Sales' motion to quash service of summons and complaint, is denied.  

Plaintiffs Ali Jahromi, Arshia P. Enterprise, Inc., Iraj Jahromi, Advance Auto Care, Inc., and Joe Moeen's request for judicial notice of proofs of service of summons filed on May 15, 2023 in this action is denied.  It is unnecessary to ask the court to take judicial notice of materials previously filed in this case.  A party may “simply call the court’s attention to such papers.”  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 9:53.1a.)

Contrary to Plaintiffs' assertion (Opp., at p. 2), "[a]n appearance at a hearing at which ex parte relief is sought, or an appearance at a hearing for which an ex parte application for a provisional remedy is made, is not a general appearance and does not constitute a waiver of the right to make a motion under Section 418.10."  (Code Civ. Proc., § 418.11.)  Plaintiffs offer no authority to support their argument that because Defendant appeared for a deposition, that constituted a general appearance in the case.  (See Opp., at p. 3.)

Section 415.20 permits substitute service in lieu of personal delivery if “a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served.” Substitute service is effected by “[1] 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, [2] 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 [3] 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.” (Code Civ. Proc., § 415.20, subd. (b).)

Statutes governing substitute service shall be “liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant.” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1201, citing Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) Otherwise, “[i]n order to obtain in personam jurisdiction through any form of constructive service there must be strict compliance with the requisite statutory procedures.” (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1417.) “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.” (Dill v. Berquist Constr. Co. (1994) 24 Cal.App.4th 1426, 1439.) Without valid service of summons, the court never acquires jurisdiction over the defendant. (Code 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 facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 [internal quotes omitted]; see Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163.)  

Here, Plaintiffs purported to serve Shirzadegan by substitute service on April 28, 2023 at 3:20 pm, by serving "JOHN Doe, Refuse to Identify ( middle eastern male 6'0-6'2 tall 50-55 years old 200-220 lbs" at his usual place of business.  (Amd. Proof of Service of Summons [ROA 22].)  Filing a proof of service that complies with statutory standards creates a rebuttable presumption that service was proper.  (Floveyor Internat. Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.)  Shirzadegan has not adequately rebutted this presumption.  His declaration fails to comply with Code of Civil Procedure section 2015.5. He also asserts that an incorrect address was used on the Complaint. (Shirzadegan Decl.)  However, the address alleged in the Complaint (see Complaint, at ¶ 1) has no relevance to the address listed on the proof of service of summons, which he has asserted to be the correct address.  (See Shirzadegan Decl.)  Accordingly, the motion is denied. 

Within 15 days of the notice of ruling, Shirzadegan shall file his answer to the First Amended Complaint.  Shirzadegan shall serve the answer pursuant to the Code of Civil Procedure.

Plaintiffs shall give notice of the ruling.