Judge: Frank M. Tavelman, Case: 22BBCV00299, Date: 2022-09-30 Tentative Ruling

Case Number: 22BBCV00299    Hearing Date: September 30, 2022    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO QUASH SUMMONS

ALLEGATIONS:

Plaintiff Jens Larson (“Plaintiff”) filed suit against Defendants Annabelle Vita, Artin Davtyan, Hakob Adzhyan, Elizabeth Rittersdorf, Dynamic Physical Therapy Group, Inc., and Wellness Health Care, and Does 1-100 (“Defendants”), alleging Defendants altered medical records to affect a separate but related proceeding for medical malpractice—Case No. 19STCV44154 Jens Larson v. Tender Home Health, et al.

Plaintiff filed his original Complaint on May 4, 2022. On July 13, 2022, Plaintiff filed a Second Amended Complaint alleging one cause of action for fraud.

HISTORY:

The court received the Motions filed by Moving Defendants on August 12, 2022. The Court received the oppositions to the Motion filed by Plaintiff on August 18, 2022. The Court received one reply to the Motions filed by Moving Defendant Elizabeth Rittersdorf on September 1, 2022.

RELIEF REQUESTED:

Defendants move to quash service of summons.

ANALYSIS:

I.          LEGAL STANDARD

“A summons may be served by any person who is at least 18 years of age and not a party to the action.” (CCP § 414.10.)

“A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery.” (CCP § 415.10.)

“In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and 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...” (CCP § 415.20(a).)

“If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by 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, 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 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…” (CCP § 415.20(b).)

For service on a corporation, CCP § 416.10 states in part that a summons may be served by delivering a copy of the summons and complaint to a designated agent for service of process or to the head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, or a person authorized by the corporation to receive service of process.

II.        MERITS

On July 18, 2022—the same day the court held an OSC re: Plaintiff’s failure to file proof of service—Plaintiff filed proof of personal service on each of the Moving Defendants.

Defendants’ Arguments:

Moving Defendants argue they were not properly served. More specifically:

Artin Davtyan states he was not personally served, as he was not at the address listed on proof of service filed with the court when personal service was allegedly performed (Davtyan Decl. ¶¶ 2-3.);

Hakob Adzhyan states he was not personally served, as his business Dynamic Physical Therapy was never located at the address listed on proof of service filed with the court (Adzhyan Decl. ¶¶ 2-3.);

Elizabeth Rittersdorf states she was out of the state at the time personal service was allegedly performed (Rittersdorf Decl. ¶ 3.);

Dynamic Physical Therapy, Inc. states—through a declaration by its president Hakob Adzhyan—that it was never located at the address listed on proof of service filed with the court and thus an officer of the company could not have been personally served (Adzhyan Decl. ¶¶ 2-3.);

Wellness Health Care argues that it was never located at the address listed on proof of service filed with the court and thus an officer of the company could not have been personally served.

Put simply, Moving Defendants accuse Plaintiff of lying about proof of service.

Plaintiff Arguments

Plaintiff argues that each Moving Defendant was served with a summons according to statutory standards and this creates a rebuttable presumption that service was proper. Plaintiff provides the declaration of his adult daughter who attests she attempted to personally serve each of the moving Defendants. (Jaden Larson Decl. ¶¶ 1-5.) In the instances Plaintiff’s daughter was unable to personally serve one of the Moving Defendants she left summons with an authorized individual—in other words, she performed substituted service. (Jaden Larson Decl. ¶¶ 1-5.)

Plaintiff’s daughter states she misunderstood the court’s proof of service form and thought she was supposed to check the box for personal service when she was supposed to check the box for substituted service. (Jaden Larson Decl. ¶¶ 6-7.) In addition, Plaintiff provides evidence that Moving Defendants were on actual notice, and that counsel for Moving Defendants ignored the court’s call for party appearances at the OSC in order to avoid making a general appearance. (Jens Larson Decl., Exhibit A.)

Defendant – Rittersdorf Reply

In the only reply filed, Elizabeth Rittersdorf corrects her prior assertion that she was in Arizona at time of service and instead states she was in Michigan. Ms. Rittersdorf provides a screenshot from her cell phone showing that a plane flight to Michigan was booked in her name for the day before service was allegedly performed. (Rittersdorf Decl., Unnumbered Exhibit.)

DISCUSSION

Filing a proof of service that complies with statutory standards creates a rebuttable presumption that service was proper. (Dill v Berquist Construction Co., Inc (1994) 24 Cal.App.4th 1426, 1441-1442.) When there is conflicting evidence of proof of service, the trial court sits as the finder of fact and appellate courts will review the trial court’s order for abuse of discretion. (Ibid.; See also McKenzie v. McKenzie (Cal. Ct. App., Nov. 27, 2002, No. B156506) 2002 WL 31677189, at *3 [“Where the evidence is in conflict…the trial court could reasonably conclude the defendant had actual notice…”] [unpublished opinion].)

Here, Plaintiff filed proof of service that failed to accurately address the type of service Plaintiff asserts took place.   Plaintiff’s daughter, served as his process server and admits she improperly checked “personal service.”  (Jayden Larson Decl. ¶7.)  Jayden Larson further asserts that she should have checked the “substitute of service [sic]” box.  (Id.).   However, Ms. Larson’s declaration fails to address the requirements for proper substituted service on the Proof of Service Form, section 5(b)(2) and (b)(4).  Even assuming the facts asserted in Jayden Larson’s declaration are accurate, the requirements for substituted service have not been met.  Specifically, posting is not listed as a method of substituted service in non-unlawful detainer cases, nor is there any proffered evidence in the declaration that the summons was subsequently mailed.  Although there is a rebuttable presumption that service was proper, the proof of service to support that presumption was defective.  As such, the burden of service remains with the Plaintiff

As to ELIZABETH RITTERSDORF, Jayden Larson asserts that she left the documents near an open front door and heard persons inside.  Nothing indicates she subsequently mailed the documents.   The Court does not need to opine as to whether the initial posting of the documents is sufficient, as the other requirements for substituted service were not met.  The Court grants the Motion to Quash.

Plaintiff argues that regardless of whether proper service of the summons and complaint were made, the Defendants had actual notice of the lawsuit.  Plaintiff cites numerous cases concerning actual notice; however, those cases concern relief from a default judgment and do not expressly address actual notice as an excuse for improper service.  The Second District Court of Appeal discusses in Rogers v. Silverman that, “Even actual notice is not a substitute for proper service.  (Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1124.)  Therefore, the Motion to Quash for Rittersdorf is granted.

As to HAKOB ADZHYAN the Plaintiff asserts that service of process took place after Jayden Larson slipped papers under the door at Adzhyan’s closed business, and then another copy was served on a random employee in the parking lot, which is discussed more fully below.  (Jayden Larson Decl.).  Jayden Larson further stated that she incorrectly filled out the proof of service form, as discussed above.   Even if arguably the person served in the parking lot was consistent with CCP §415.20(b), nevertheless, service was never perfected by a subsequent mailing as also mandated by that section.   As such the service of process was defective, and the Motion to Quash is granted.

Defendant Dynamic Physical Therapy, Inc. (“DPT”) and Wellness Healthcare, Inc. (“WH”) alleges that Plaintiff served a temporary employee of the corporation and not an officer, employee authorized to receive service of process or an agent for service of process.  Jaden Larson stated that she simply asked a woman she recognized in the past from DPT, “If she was part of Dynamic Physical Therapy Group, Wellness Healthcare and Hakob Jack Adzhyan” and the person replied, “yes.”  Then she gave her the summon and complaint.  This woman was exiting her car, so the Court presumes the service was in the parking lot for 12444 Victory Blvd, North Hollywood, California. (Jaden Larson Decl. ¶5).

As to DPT and WH, service is claimed to have occurred upon a random employee in the parking lot.  The question posed to this person was simply, are you with DPT and WH?  Rather than going to a physical location for the business, Plaintiff attempted to serve a random employee.   Such service upon a corporation is not consistent with the Code of Civil Procedure.  While the Court understands that the Plaintiff is self-represented, nonetheless, the proper methods of serving a corporation is readily available via on-line internet searches or using the County Law Library.  As discussed above, actual notice is not a substitute for proper service, and the Court declines to take a “no harm no foul” approach to the legal requirements for service of process.

As such, as to DPT and WH the Motion to Quash is granted.

As to ARTIN DAVTYAN, Jaden Larson stated in her declaration that she served a woman at the home of Davtyan, and she incorrectly completed the proof of service.  However, this type of substituted service, as discussed above must be perfected by mailing.   Nothing in the declaration shows that substituted service was perfected as mandated by the Code of Civil Procedure.  As such, the Motion to Quash is granted.

III.       CONCLUSION

Moving Defendants’ 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

Artin Davtyan, Hakob Adzhyan, Elizabeth Rittersdorf, Dynamic Physical Therapy Group, Inc., and Wellness Health Care's Motions came on regularly for hearing on September 30, 2022, 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 MOTIONS TO QUASH ARE GRANTED.

IT IS SO ORDERED.

DATE:  September 30, 2022                          _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles