Judge: Edward B. Moreton, Jr., Case: 22STCV35085, Date: 2023-01-27 Tentative Ruling

Case Number: 22STCV35085    Hearing Date: January 27, 2023    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

BACKGROUND

            This case arises from claims of discrimination, harassment, and retaliation.  Plaintiff Aurice Veloso was employed by Defendant Leo David as a caregiver for his wife.  Plaintiff alleges that David asked her to sleep with him in exchange for improved working conditions and other financial incentives including a car and tuition.  David also allegedly made offensive remarks about Plaintiff’s menstrual period, douching, personal hygiene and sexual activity.  Plaintiff further alleges that despite her working around the clock, she was not compensated for overtime or provided rest and meal breaks.  David then terminated Plaintiff when she opposed his alleged discrimination and harassment. 

Defendant paid Plaintiff’s wages through various companies he owned, including XCVI, LLC (“XCVI”), Constructions for Less, Inc. (CFL), AMLease Corporation, and Tri-Net HR II, Inc..  Plaintiff is suing these corporate defendants as “joint employers.”  Plaintiff alleges these corporate defendants ratified and adopted the conduct of David. 

The operative complaint alleges claims for: (1) violations of Fair Employment and Housing Act; (2) wrongful termination in violation of public policy; (3) violation of Labor Code Section 1102.5; (4) violation of California Wage & Hour Laws and Regulations; (5) assault and battery; (6) breach of oral and implied contract; (7) false promise/intentional misrepresentation; and (8) violation of Business and Professions Code Section 17200.    

This hearing is on Defendants XCVI’s and CFL’s motions to quash service of summons.  Both defendants argue Plaintiffs failed to serve their agent for service of process. 

LEGAL STANDARD

“Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.”  (AO Alfa-Bank v. Yakovlev (2018) 21¿Cal.App.5th 189, 202.)  “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential.”  (Kremerman v. White (2021). 71 Cal.App.5th 358, 371.) 

But the statutory requirements are to be liberally construed to uphold jurisdiction, rather than defeat it.  (Pasadena Medi-Center Assocs. v. Sup.Ct. (Houts) (1973) 9 Cal.3d 773, 778 (“The provisions of this chapter should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant, and in the last analysis the question of service should be resolved by considering each situation from a practical standpoint.”)

Defendant’s knowledge of the action does not dispense with statutory requirements for service of summons.  (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.)  However, as long as the defendant receives actual notice of the lawsuit, substantial compliance with the Code provisions governing service of summons will generally be held sufficient.  (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 410-411 ( “It is well settled that strict compliance with statutes governing service of process is not required.  Rather, in deciding whether service was valid, the statutory provisions regarding service of process should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant.”).)

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow” may move “to quash service of summons on the ground of lack of jurisdiction of the court over him or her” that results from lack of proper service.  (Code of Civ. Proc. §418.10(a)(1).  A defendant has 30 days after the service of the summons to file a responsive pleading.  (Code Civ. Proc., §412.20(a)(3).)  

“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 existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) 

REQUEST FOR JUDICIAL NOTICE

Defendants request judicial notice of a statement of information for CFL filed with the California Secretary of State.  The Court grants Defendants’ request for judicial notice pursuant to Cal. Evid. Code §§ 452(c) and 452(h).  

DISCUSSION

The Code authorizes service on a corporation through (1) “the person designated as agent for service of process” and (ii) “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.”  Code Civ. Proc. §416.10(a)-(b). 

As to CFL, the motion to quash has been mooted by Plaintiff’s subsequent service of CFL’s agent of service.  Plaintiff initially served Alon Zelter as CFL’s “Agent of Service.”  However, Zelter has no affiliation whatsoever with CFL and is not authorized by law or appointment to receive service of process on behalf of CFL.  (Zelter Decl. ¶¶3-4.)  CFL’s agent for service is Sharli Guta, not Zelter.  (Ex. 2 to Zelter Decl.).  And Zelter is not any one of the persons listed in Code Civ. Proc. §416.10(b).  (Zelter Decl. ¶4.)  However, Plaintiff has now served CFL’s agent for service, Sharli Guta, by substitute service, at CFL’s address, 5354 Vanalden Avenue, Tarzana, California.  (Ex. 2 to Zelter Decl.; Ex. B to Chinchilla Decl.)   Defendants do not argue that this substitute service was defective.  Accordingly, CFL’s motion to quash service of summons is denied as moot.  (See e.g., Lim v. Calilung, 2022 Cal. Super. LEXIS 58103 at *3-*4 (denying motion to quash as moot where subsequent proper service was made); Beverly Pico, LLC v. Realty Mogul, Co., 2021 Cal. Super. LEXIS 1141 at *1-*2 (subsequent proper service moots any issues with original defective service).)

As to XCVI, Zelter is its agent for service.  But Plaintiff did not personally serve Zelter.  While the Code authorizes substitute service in lieu of personal service, certain conditions must be satisfied, including that the summons and complaint must be left at the person’s dwelling “in the presence of a competent member of the household … at least 18 years of age, who shall be informed of the contents thereof[.]”  Code Civ. Proc. §415.20(b).  Here, Plaintiff’s process server attests that the summons and complaint were left with a blond female at Zelter’s home.  (Ex. 1 to Zelter Decl.)  But Zelter avers there is no blond female in his household; his wife has black hair (not blonde), and both his daughters who are under age 18 are also not blonde.  (Zelter Decl. ¶5.)  Zelter’s declaration studiously avoids stating whether he nevertheless received a copy of the summons and complaint.  In any event, based on these facts, the Court cannot conclude that the statutory requirements for substitute service were met.  Accordingly, XCVI’s motion to quash is granted.    

CONCLUSION

            Based on the foregoing, the Court DENIES AS MOOT Defendant CFL’s motion to quash service of summons and GRANTS Defendant XCVI’s motion to quash service of summons.

IT IS SO ORDERED.

DATED: January 27, 2023                                         ___________________________

                                                                                    Edward B. Moreton, Jr.

                                                                                    Judge of the Superior Court