Judge: Frank M. Tavelman, Case: 23BBCV00952, Date: 2024-01-26 Tentative Ruling

Case Number: 23BBCV00952    Hearing Date: January 26, 2024    Dept: A

MOTION TO QUASH SERVICE OF PROCESS
Los Angeles Superior Court Case # 23BBCV00952

 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:  

Nora Bekerian (“Plaintiff”) brings this action against Private Money Lenders, Inc. (“Private”), Charles Anthony Hasbun, and Mickey Lynn McClinton (“McClinton”) (collectively “Defendants”). Plaintiff alleges a conspiracy between Defendants whereby McClinton, serving as a General Contractor for Plaintiff, pressured Plaintiff into taking out exorbitant loans through Private. Plaintiff alleges she never received the benefit of these loans. 

Private 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. Private argues that Plaintiff’s service is defective in that the registered agent of process for Private was never personally served. Plaintiff opposes the motion, arguing the proof of service creates a rebuttable presumption that service was valid. 

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.)  

II.              MERITS 

“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.)  

Plaintiff provides proof of service on Saleh Hasbun (“Saleh”), Private’s registered agent for service of process, on August 31, 2023. (Kosovan Decl. ¶ 9, Exhs. 1 & 2.) The proof of service shows Saleh was personally served at 17715 Chatsworth St. Ste. 101 Granada Hills, CA 91344, which is the registered address with the California Secretary of State for Private. (Id.) The process server’s affidavit is properly executed and creates a rebuttable presumption that Saleh was indeed personally served. As such, the burden shifts to Private to produce evidence in contravention of that presumption.  

In opposition, Private offers the declaration of Saleh’s brother Charles Hasbun (“Charles”). Charles states that Saleh does not fit the physical description on the affidavit of service. (Charles Decl. ¶ 2.) Further, Charles states that Saleh was not at the Granada Hills address on the date of service, as Saleh is currently suffering from a medical condition which restricts his ability to move and travel. (Id.) Charles states that he can provide further details to the Court in camera under seal. However, Private has filed no motion to seal and no exhibits are attached to the Charles declaration. 

Plaintiff argues that the Charles declaration is vague, conclusory, and lacks foundation for its factual assertions as required by C.R.C. Rule 5.111(b)(2). The Court agrees that the Charles declaration is insufficient to rebut the presumption created by the proof of service. Charles’ declaration is unaccompanied by any source from which Charles’ knowledge can be drawn. Outside of his familial relationship to Saleh, the Charles declaration does nothing to establish Charles’ familiarity with Saleh’s medical condition or the circumstances of service. The Charles declaration is not accompanied by any evidentiary offerings as to Saleh’s condition or his whereabouts on August 31, 2023. 

Further, it is clear that Plaintiff was at the very least in substantial compliance. “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.)  

Plaintiff states in their declaration that counsel for Private initiated contact with Plaintiff’s counsel shortly after service was rendered. (Kosovan Decl. ¶ 4.) The Court also acknowledges the common-sense conclusion that service was sufficient to provide actual notice given that Private was able to contact Plaintiff’s counsel, timely file a motion to quash, and avoid default. In accordance with the liberal construction rule, the Court finds Plaintiff substantially complied with the service requirements such as to give Private actual notice of this action. 

In short, the Court finds Plaintiff has established service was proper and that Private has not offered sufficient evidence in refutation. Accordingly, the motion to quash service of process is DENIED. 

--- 

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 

 Private Money Lenders, Inc.’s Motion to Quash Service of Summons came on regularly for hearing on January 26, 2024, 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 DENIED.

A RESPONSIVE PLEADING IS DUE WITHIN 20 DAYS.   

UNLESS ALL PARTIES WAIVE NOTICE, PRIVATE MONEY LENDERS, INC. TO GIVE NOTICE.

 IT IS SO ORDERED. 

DATE: January 26, 2024                           _______________________________ 

                                                                        Yolanda Orozco, Judge 

Superior Court of California 

County of Los Angeles