Judge Douglas W. Stern, Case 22STCV02336 2022-12-07 Tentative Ruling

Judge: Douglas W. Stern, Case: 22STCV02336, Date: 2022-12-07 Tentative Ruling

Case Number: 22STCV02336 Hearing Date: December 7, 2022 Dept: 68

Cass Asher v. John Charles Graff and West End Group Inc, Case No. 22STCV02336

Motion of West End Group Inc. to Quash Service of Summons and Complaint

“DEFENDANTs frivolous motion to quash merits sanctions as well as pursuant to the provisions of Code of Civil Procedure section 415.30, for an order allowing Plaintiff to recover the costs incurred in personally serving the summons and complaint on defendant to deter them from further misconduct.” (Opposition pg. 4:15-17.)

Perhaps not.

West End’s Evidentiary Showing of No Service

Defendant West End Group Inc. (“West End”) has filed a Motion to Quash Service of Summons. Defendant has submitted the Declaration of Mary Murphy attesting to the fact that on September 21, 2022, a person identified to her as Plaintiff Cass Asher purported to serve West End by delivering the Summons and Complaint to her while she attended a meeting at 11166 Ohio Avenue, Los Angeles, CA. Murphy testified that she is “not affiliated in any manner with West End Group Inc.” (Decl. pg. 5:11.)

Declarant John Goalwin, Defendant West End’s attorney, also attended that September 21, 2022 meeting. He knows Plaintiff Cass Asher. Asher was sitting in front of Goalwin. Mary Murphy approached Goalwin at that meeting and told him that Cass had just handed her the Summons and Complaint. (Decl. pg. 3:13-18.) Goalwin states that Murphy is not the agent for service of process nor an officer of West End.

Plaintiff’s Opposition

“The Plaintiff in fact had a process server serve the plaintiff using substitutive service and California Evidence Code (“EC”) section 647 creates a legal presumption that the facts stated in a proof of service filed by a registered process server are true and that the service of process is valid.” (Opposition pg. 2:12-15.)

The Declaration of Plaintiff’s counsel states that a proof of service would be filed with the Opposition. The Court found none. Hence, no “presumption” arises.

Defendant’s evidentiary showing is met by Plaintiff’s Opposition containing no evidence of service of any type, at any time, on any person. Instead, it vaguely references a claimed service on June 25, 2019 (a date 3 years before the action was filed). No specific person is identified as having been served on that date.

“Plaintiff … opposes Defendants Motion on the grounds that the Summons and Complaint were properly served using an individual person and a registered process server through substituted service…”. (Opposition pg. 1:18-21.)

Plaintiff claims that service was performed under Code of Civil Procedure § 415.20.

“Defendant contends that he was not served. However, Defendant offers no evidence that he was not properly served by substituted service.” (Opposition pg. 2:27-28.) Plaintiff then explains that substituted service may be used.

“The summons and complaint were properly served on Defendant by substitute service on June 25, 2019. Defendants moving papers do not contest substituted service.” (Opposition pg. 3:20-21.)

(Actually, Defendant’s moving papers do contest service, substituted or other.) In short, Plaintiff provides no evidence of any type to support the factual claim that any type of service was made on West End.

The Law on Service on a Corporation

“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 as provided by any provision in Section 202, 1502, 2105, or 2107 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code, as in effect on December 31, 1976, with respect to corporations to which they remain applicable).

(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.

(d) If authorized by any provision in Section 1701, 1702, 2110, or 2111 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code, as in effect on December 31, 1976, with respect to corporations to which they remain applicable), as provided by that provision.” Code Civ. Proc., § 416.10

There is no suggestion by Plaintiff that service was accomplished in conformity with this statute.

Further, as noted by West End, Plaintiff himself is disabled from serving the Summons and Complaint. “A summons may be served by any person who is at least 18 years of age and not a party to the action.” Code Civ. Proc., § 414.10. The only evidence presented shows that it was Plaintiff that purportedly delivered the summons and complaint.

Conclusion

The Court shall “pass” on the invitation to sanction Defendant West End for filing the Motion to Quash.

The Motion to Quash is GRANTED.