Judge: Frank M. Tavelman, Case: 20BBCV00367, Date: 2023-12-22 Tentative Ruling

Case Number: 20BBCV00367    Hearing Date: December 22, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO QUASH SERVICE OF PROCESS

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Cheldon Felix, Juan Anthony Garcia, Milagros Alvarado, Yasmin Roche, Yoselyn Roche, Hector Martinez, Yvonne Fabela, Jorge Mancia, Marilyn Martinez, Santiago Tito Jr, Richard Tito, Santiago Tito Sr., Noah Hannah, Erin Dalan, Justin Mcclenaham, Barbra Decker (collectively “Plaintiffs”) bring this action against Royal Garden Apartments, Inc. and J.K. Residential Services, Inc. (“JK Residential”) (collectively “Defendants”). Plaintiffs allege, among other things, Defendants were negligent with respect to remediation of mold, insects, and vermin in Plaintiffs’ apartments.

JK Residential now moves to quash service of the summons and complaint on grounds that service was not rendered in compliance with California Code of Civil Procedure (“C.C.P”) § 416.10. JK Residential argues that Plaintiffs’ service is defective in that a corporation cannot be served via posting to its place of business. Plaintiffs oppose the motion on grounds that they substantially complied with the service requirements such as to provide actual notice.  

ANALYSIS: 

I.                    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 [internal quotations marks and citation omitted].)  “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential.”  (Kremerman v. White (2021) 71 Cal.App.5th 358, 371.)  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.) 

“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.  (C.C.P. § 418.10(a)(1).  A defendant has 30 days after the service of the summons to file a responsive pleading.  (C.C.P. § 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.) 

“Evidence Code section 647 provides that a registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration.” (American Express Centurion Bank v. Zara (2011) 199¿Cal.App.4th 383, 390 [internal citation omitted]; Evid. Code § 647.) 

II.                 MERITS

JK Residential argues that legal service was insufficient because the service was posted conspicuously at its place of business. The proof of service submitted by Plaintiffs shows that registered process server posted notice of the suit in a conspicuous place at 2016 Riverside Dr Los Angeles, CA 90039-3707 on August 16, 2023. JK Residential states this service is defective because it is not considered service upon any of the approved persons listed in C.C.P. § 416.10. JK Residential states its only agent of service is Ritesh Desai (“Desai”). (Desai Decl. ¶ 1.) Desai states that he never was personally served with the summons and complaint for JK Residential. (Desai Decl. ¶ 2.)

Plaintiffs’ proof of service states that the service was made pursuant to C.C.P. § 415.46. Section 415.46 is the statute governing service of notice of a prejudgment claim of right to possession in unlawful detainer cases. C.C.P. § 415.46 has no relevance to service of tort claims upon a corporation.

Regardless, Plaintiffs argue that their service via posting is substantially compliant with the Code of Civil Procedure. Plaintiffs argue that so long as their method of service resulted in actual notice to JK residential, service should be deemed substantially complaint.

“It is axiomatic that strict compliance with the code's provisions for service of process is not required. (Ramos v. Homeward Residential, Inc., 223 Cal. App. 4th 1434, 1443.) “[I]n 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.” (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313.) In essence, substantial compliance with the code’s requirements for service of process is sufficient. (Id.)  

“[M]ere receipt of the summons by an unknown employee of the corporation who is not a person specified in section 416.10 does not necessarily establish substantial compliance. Evidence that shows the name of the person who received the summons and complaint as well as the person’s title or capacity is required by statute and, without it, a trial court need not infer that a person specified in section 416.10 actually received the summons and complaint.” (Ramos supra, 223 Cal.App.4th at 1443 [internal citations omitted].)

Here, the Court finds Plaintiffs’ service was not in substantial compliance. As evidence of JK Residential’s actual knowledge of the claim against them, Plaintiffs submit the declaration of Desai submitted in response to JK Residential’s previous motion to be relieved as counsel. (Oppo. Exh. B.) The Court finds the declaration is insufficient evidence of actual notice being received. 

“The party seeking to establish jurisdiction over a nonresident defendant bears the burden of demonstrating by a preponderance of the evidence that the exercise of jurisdiction is appropriate.” (Bresler v. Stavros (1983) 141 Cal.App.3d 365, 367.) Specifically, “the plaintiff must provide specific evidentiary facts, through affidavits and other authenticated documents, sufficient to allow the court to independently conclude whether jurisdiction is appropriate and cannot rely on allegations in an unverified complaint or vague and conclusory assertions of ultimate facts.” (Swenberg v. Dmarcian, Inc. (2021) 68 Cal.App.5th 280, 291 [internal quotation marks and citations omitted].)

JK Residential was added as a party by Doe amendment on March 21, 2022 and it appears service was not attempted until August 2023. In his previous declaration Desai states he is familiar with this matter, but only attests to his knowledge of the suit against Royal Garden Apartments. (Oppo. Exh. B ¶¶ 2-3.) Desai makes no representations as to his knowledge of the claims against JK Residential itself.  

Plaintiffs’ proof of service and the submission of Desai’s previous declaration are insufficient to create a rebuttable presumption of notice to JK Residential. Plaintiffs’ proof of service only shows service by a method not authorized by statute and citing to a wholly irrelevant code section. Further, Plaintiffs’ submissions contain no evidence that a person designated under C.C.P. § 416.10 received the summons and complaint.

Accordingly, the motion to quash service of summons is GRANTED.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

J.K. Residential Services, Inc.’s Motion to Quash Service of Summons came on regularly for hearing on December 22, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO QUASH SERVICE OF SUMMONS IS GRANTED.  

UNLESS ALL PARTIES WAIVE NOTICE, JK RESIDENTIAL TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE: December 22, 2023                           _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles